*THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY +WRIT PETITION Nos.27040 of 1998 % 30-12-2008 # Abdur Rahim. … Petitioner Vs. $ Osmania University, reptd., by is Registrar, Hyderabad and two others. … Respondents ! Counsel for the petitioner : Sri Vedula Venkata Ramana. ^ Counsel for respondents : Sri Deepak Bhattacharjee. < Gist: > Head Note: ? Cases referred: 1. (1996) 2 SCC 145 2. (1993) 1 SCC 419 3. (1995) 1 SCC 332 4. (1994) 2 SCC 746 5. AIR 1997 SC 1900 6. 2006 (2) ALT 289= 2006(2) ALD 585 7. AIR 1996 SC 1669 8. (1886) 17 QDB 536 9. (1959) 1 WLR 698 10. AIR 1967 SC 1274 11. (1992) 4 SCC 54 12. AIR 1979 SC 1022 13. AIR 1975 SC 2151 14. AIR 1976 SC 1080 15. AIR 1983 SC 1102 16. (1995) 6 SCC 750 17. AIR 1997 SC 2286 18. (2000) 1 SCC 416 19. (2006) 1 SCC 63 20. (2006) 2 SCC 584 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF DECEMBER, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.27040 of 1998 Between: Abdur Rahim. … Petitioner And Osmania University, reptd., by is Registrar, Hyderabad and two others. … Respondents Counsel for the petitioner : Sri Vedula Venkata Ramana. Counsel for respondents : Sri Deepak Bhattacharjee. This Court made the following: JUDGMENT:- A writ of Certiorari is sought to quash order dated 11-2-1998 passed by respondent No.2 according sanction for reduction in the rank of the petitioner from professor to that of reader. FACTS: The petitioner was appointed as lecturer in the Department of Communication and Journalism in respondent No.1-Osmania University (for short “the University”) on 3-10-1972. He was promoted as reader on 13-1-1984 and as professor on 1-1-1993. The petitioner was Head of the Department of Communication & Journalism from February, 1993 to August, 1995. Entrance test for admission into the course of Bachelor of Communication & Journalism (BCJ) was held on 24-6-1995. Apart from the course in English, 30 seats each were sanctioned for the two regional languages viz., Telugu and Urdu Journalism. The answer scripts, numbering 1347, were sent to the Department of Communication and Journalism headed by the petitioner. The petitioner, as Head of the Department, was entrusted with the responsibility to get the evaluation completed by a team of valuers. In connection with the said evaluation, adverse reports against the petitioner appeared in the newspapers. In the said reports, the petitioner was accused of tampering with the answer scripts of Urdu medium students by awarding higher marks to make sure that some of his favoured candidates secure seats in the BCJ course. Following the said news reports, respondent No.3 got a preliminary enquiry held into the affairs by Prof. K.Madhusudhan Reddy. The preliminary enquiry officer took over all the answer scripts from the petitioner on 7- 7-1995. After considering the preliminary enquiry report, the University sent the answer scripts to forensic expert and on considering the report of the forensic expert, the Executive Council in its meeting held on 7-11-1995 authorized respondent No.3 to appoint an enquiry officer to enquire into the circumstances leading to the cancellation of BCJ entrance test conducted on 24-6- 1995 and initiate disciplinary action against the persons responsible. Accordingly, respondent No.3 appointed Sri T.V.Narayana, as enquiry officer. Questioning the said action, the petitioner filed Writ Petition No.13347 of 1996 in this Court. The matter ultimately reached the Division Bench in Writ Appeal No.859 of 1996, which was disposed of on 5-8-1996 with the direction to the University to appoint a High Court Judge in service or retired or any person qualified to be a High Court Judge or an eminent Educationist or senior IAS officer or the Vice-Chancellor to hold the enquiry. Accordingly, the Executive Council in its meeting held on 1-10-1996 resolved to appoint a High Court Judge as an enquiry officer and authorized respondent No.3 to name the High Court Judge. Respondent No.3, thereupon, appointed Justice M.Ranga Reddy, former Judge of this Court as enquiry officer under Rule 7(b) of the Osmania University Service (Disciplinary and Appeal) Rules, 1990 (for short “the Rules”) to conduct the departmental enquiry against the petitioner. This decision was communicated by the Registrar of the University by order dated 4-11-1996. The enquiry officer framed three charges, which are as follows: “Charge-1: That you, having received answer-scripts of BCJ Entrance Examination, 1995, in your capacity as Head of the Dept. of Communications & Journalism on 25-6-1995 for purpose of evaluation tampered with the answer-scripts by writing something, striking off the wrong markings given in respect of objective type of questions and ticking right answers with dishonest intention of helping certain candidates of Urdu medium, which conduct of yours, if established, or proved, would amount to misconduct. Charge-2: That you, deliberately and dishonestly selected Dr.Baig Ehsas, Reader in Urdu, whose qualification, to evaluate the answers involving social science background, is doubtful and thereby deviated from the normal procedure adopted for valuing the scripts with the idea that you would agree with the valuation as made by you. Charge-3: That you, valued the answers to question Nos.7, 8 and 9 written in English as well as Urdu by the candidates who have chosen Urdu as their medium and took into consideration the higher marks obtained by such candidates that such option is not given to them with a view to help the candidates of Urdu medium”. As many as 13 witnesses were examined as PWs.1 to 13 and 22 documents were marked as Exs.A.1 to A.22 on behalf of the University. No oral evidence was adduced on behalf of the petitioner but Exs.D.1 to D.3 were marked on his side. The enquiry officer submitted his report dated 3-7-1997. In his report, while finding the petitioner guilty of all the three charges, the enquiry officer opined that it is undesirable to continue the petitioner as Head of the Department or entrust him with any valuation work in future, apart from recommending for stoppage of three increments with cumulative effect. The said report was considered by the Executive Council in its 19th meeting held on 21-7- 1997 and resolved that the punishment suggested by the enquiry officer is inadequate in view of his finding that the petitioner is guilty of all the three charges. While deciding to remove the petitioner from service, a show cause notice was issued by the University by memo dated 27-8-1997, enclosing a copy of the enquiry report. The petitioner submitted his explanation, which was considered by the Executive Council in its 23rd meeting held on 22-11-1997 and reconsidered its earlier view on humanitarian grounds. It, accordingly, resolved to demote the petitioner as reader and not to assign him any confidential and administrative work for a period of five years. Accordingly, the petitioner was demoted as reader, which action is questioned in this Writ Petition. CONTENTIONS:- Sri Vedula Venkata Ramana, learned counsel for the petitioner advanced the following contentions: 1) The Executive Council, being the disciplinary authority, alone is empowered to appoint an enquiry officer and that appointment of enquiry officer by respondent No.3-Vice-Chancellor is without jurisdiction. 2) Respondent No.3, to whom the power of Executive Council to appoint an enquiry officer was purportedly delegated, did not follow the procedure stipulated by the latter, subject to which the power was delegated, as he failed to get an enquiry held before appointing enquiry officer to hold enquiry against the petitioner. 3) The charges framed by the enquiry officer and holding of enquiry on such charges cannot be sustained because it is the disciplinary authority, which is empowered to frame the charges, and appoint an enquiry officer only if it is not satisfied with the explanation submitted by the delinquent. Therefore, the entire enquiry proceedings and the order passed on such proceedings are vitiated by serious procedural illegality. 4) The explanation submitted by the petitioner to the charges was not considered by the disciplinary authority and that if the disciplinary authority applied its mind to and considered the explanation of the petitioner, there would have been a possibility of it’s dropping the further action against the petitioner. 5) The charges framed by the enquiry officer do not constitute ‘misconduct’ as the acts complained of against the petitioner have no connection with his duties as Professor and that in the absence of any enumerated categories of misconduct in the Rules, an ex post facto misconduct cannot be added to the list of misconducts. 6) The findings of the enquiry officer are not based on legal evidence; and 7) The Executive Council, while passing the order imposing punishment, did not consider the explanation submitted by the petitioner to the show-cause notice and, therefore, the impugned order is vitiated by non-application of mind. Opposing the contentions of the learned counsel for the petitioner, Sri Deepak Bhattacharjee, learned standing counsel for the University appearing for the respondents, submitted that the Executive Council, which is the disciplinary authority, delegated its power to respondent No.3 under Section 19(25) of the A.P. Universities Act, 1991 (for short “the Act”). He also relied on Section 13(8)(a), under which emergency powers are conferred on the Vice-Chancellor for taking immediate action subject to the control of the Chancellor and reporting the action taken to the officer or authority concerned. He further submitted that the Rules do not envisage framing of charges by the disciplinary authority and in the absence of such a requirement, the enquiry officer is competent to frame charges. In support of this contention, he relied upon the judgment of the Supreme Court in Inspector General of Police Vs. Thavasiappan[1]. He also relied upon the judgments of the Supreme Court in P.V.Srinivasa Sastry Vs. Comptroller & Auditor General[2], Transport Commissioner, Madras Vs. A.Radha Krishna Moorthy[3], Registrar, Co-operative Societies Vs. F.X.Fernando[4], Government of Tamil Nadu Vs. S.Velraj[5] and the five Judges Bench judgment of this Court i n K.Swarna Kumari Vs. Government of Andhra Pradesh[6] in support of his contention that an authority subordinate to the disciplinary authority is also competent to initiate disciplinary action. He also submitted that as the head of the department, the petitioner was entrusted with the responsibility of evaluation of the answer scripts and in view of the established fact that the answer scripts were found tampered, which constitutes serious misconduct on the part of the petitioner in discharge of official duties entrusted to him, it cannot be said that the petitioner is not guilty of any misconduct. He denied the contention that the findings are not based on legal evidence and referred to the report of the enquiry officer, who discussed the oral evidence of the witnesses and the documentary evidence adduced by the parties. He submitted that the Executive Council, after a detailed consideration of the explanation of the petitioner and the entire record, passed the impugned order. ANALYSIS:- I shall now refer to the contentions advanced by the learned counsel for the petitioner. RE-CONTENTION No.1: The Executive Council of the University, in exercise of its powers under the provisions of the Osmania University Act, 1959 issued Ordinance with effect from 5-11-1990 and framed the Rules. Under Rule 2 it is provided that the Rules shall apply to all employees of the University (other than those employed only occasionally or subject to discharge at less than one month’s notice or those borne on the contingent and work charged establishments) etc. Under Rule 3 several penalties were prescribed, which include reduction to a lower rank in the seniority list or to a lower post of a lower stage in the time scale. Under Rule 5(a) the appointing authority or higher authority is empowered to impose any of the penalties prescribed in Rule 3, subject to the authorities specified in the Appendix to the Rules. Under Rule 7(a) no employee of the University shall be dismissed or removed or compulsorily retired or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges. This Rule further provides that where it is proposed after such enquiry to impose upon him any such penalty, such a penalty shall not be imposed unless the employee has been given a reasonable opportunity of making a representation on the penalty proposed and such penalty shall be based on the evidence adduced during the enquiry. Under Rule 7(b) the enquiry shall be made by the enquiry officer, who shall be appointed by the Executive Council in the cases of University Employees of Class I and II status, among the following categories: 1) a High Court Judge, in service or retired or any person qualified to be a High Court Judge; or 2) an eminent educationist; or 3) a senior IAS officer or any retired IAS officer or any person who is well versed in administrative matters. Appendix to the Rules, inter alia, contains “instructions under Rule 7(a) for the guidance of enquiry officer” (for convenience it is referred to as “Heading to Appendix”). Under Clause (1) it is provided that where it is proposed to impose on an employee any of the penalties specified in items (iv), (vii) and (viii) of Rule 3, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. It further provides that the employee shall be required within such reasonable time as may be specified by the enquiring officer to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. Under Clause (3), if within the prescribed time or such time as the charging authority may give, no written statement in defence is filed and no request in writing is made for an oral enquiry or for being heard in person, the authority conducting the enquiry may proceed to record the findings without holding any further enquiry. Clause (4) inter alia provides that an oral enquiry shall be held if such enquiry is desired by the person charged. The Act repealed, among other Acts, the Osmania University Act, 1959 and the University is included within the provisions of this Act. Section 19 of the Act enumerated the powers and duties of the Executive Council. These powers include the power to delegate any of its powers to the Vice-Chancellor or to a committee from among its own members or to any employee of University under Clause (25) of the said provision. Admittedly, the Executive Council was the disciplinary authority for the petitioner. As referred to earlier, by its resolution passed on 7-11-1995, the Executive Council authorized respondent No.3 to appoint an enquiry officer to enquire into the circumstances leading to the cancellation of BCJ Entrance Test and initiate disciplinary action against the persons responsible. Therefore, the Executive Council exercised its power of delegation conferred by Section 19(25) of the Act in favour of respondent No.3. A careful perusal of the said resolution contained in the record produced by the respondents shows that the scope of power delegated is very wide, which takes within its fold the power to initiate disciplinary action against the persons responsible. Accordingly, respondent No.3 initially appointed Sri T.V.Narayana as enquiry officer, which was questioned in Writ Petition No.13347 of 1996 and in Writ Appeal No.859 of 1996, a Division Bench of this Court directed the University to appoint a High Court Judge in service or retired or any other person in accordance with the Rules. Indeed, as already noted earlier, by its resolution dated 1-10-1996 the Executive Council while resolving to appoint a High Court Judge as enquiry officer, authorized respondent No.3 to name the Judge. From this fact it is evident that while in principle the disciplinary authority itself appointed the enquiry officer by designation, the function of naming the enquiry officer is delegated to respondent No.3. Therefore, this act of delegation by the Executive Council perfectly accords with the Scheme contained in Section 19(25) of the Act. Further, the record reveals that the decision of respondent No.3 to appoint Justice M.Ranga Reddy (former Judge of this Court) was communicated by the Registrar by his letter dated 4-11- 1996. Therefore, I find no merit in this contention of the learned counsel for the petitioner. RE-CONTENTION No.2: This contention of the learned counsel is based on the language contained in the resolution dated 7-11- 1995 passed by the Executive Council, delegating the power of initiation of disciplinary action against the petitioner to respondent No.3. To appreciate this contention of the learned counsel for the petitioner, it is necessary to reproduce the said resolution passed by the Executive Council, which is as under: “ 41. BCJ Entrance Test, 1995 – Tampering of answer scripts – Allegations against Prof.Abdur Rahim, the then Head of the Department – Conduct of Enquiry. i) RESOLVED that the recommendations of the P.G. Admission Committee in canceling the BCJ Entrance Test, 1995 conducted on 24-6-1995 and to reconduct the same on 3- 9-1995, be approved. ii) FURTHER RESOLVED that the Vice- Chancellor be authorized to appoint an Enquiry Officer to enquire into the circumstances leading to the cancellation of the BCJ Entrance Test conducted on 24-6- 1995 and initiate disciplinary action against the persons responsible in the light of the report of the Enquiry Officer. iii) ALSO RESOLVED that Prof.Abdur Rahim, whose term as Chairman, Board of Studies has expired be replaced immediately”. The learned counsel submitted that even if the power of delegation is made in respect of respondent No.3, it was subject to fulfillment of the condition that the latter should appoint an enquiry officer and initiate disciplinary action against the persons responsible in the light of the report of the enquiry officer. It is significant to note that even by the time of passing of the said resolution, respondent No.3 got conducted a preliminary enquiry by Prof. K.Madhusudhan Reddy. The opening part of the Minutes extracted above specifically refers to the allegations made against the petitioner with regard to the tampering of answer scripts and the need to conduct an enquiry. Though the power of holding an enquiry was delegated to respondent No.3 in order to identify the persons responsible for tampering of answer scripts and initiate disciplinary action against the said persons, the petitioner was already identified by Prof. K.Madhusudhan Reddy, who held a preliminary enquiry. Therefore, no further preliminary enquiry was at all needed for initiating formal disciplinary proceedings against the petitioner, as contended by the learned counsel for the petitioner. At any rate, the need for holding a further preliminary enquiry was evidently not raised by the petitioner in Writ Petition No.13347 of 1996 and in Writ Appeal No.859 of 1996. With the order passed in Writ Appeal No.859 of 1996 on 5-8-1996 by the Division Bench directing the University to appoint a High Court Judge or a retired High Court Judge or any other officer in accordance with the Rules, all the objections which the petitioner had in the matter of holding enquiry are deemed to have been waived as the petitioner not only allowed the order in the Writ Appeal to become final but also submitted himself to the jurisdiction of the enquiry officer by participating in the enquiry. It is, therefore, not permissible for the petitioner to raise a plea, such as the present one, after the enquiry is concluded and order passed. This contention is, therefore, rejected. RE-CONTENTION Nos. 3 AND 4:- These two contentions, being inter related, are considered together. Rule-7, which envisages holding of enquiry, does not specifically name the authority which should frame the charges. But, Appendix to the Rules, to which a reference is made earlier, contains the key in understanding the Scheme governing the procedure. The very Heading to Appendix itself suggests that it is the enquiry officer, who is to frame the charges. Clause (1) along with the Heading is reproduced hereunder: “INSTRUCTIONS UNDER RULE 7(A) FOR THE GUIDANCE OF ENQUIRY OFFICER: (1) Where it proposed to impose on an employee any of the penalties specified in items (iv), (vii) and (viii) of Rule 3, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. He shall be required within such reasonable time as may be specified (by the inquiring authority) to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person”. A conjoint reading of the Heading to Appendix and Clause (1) leaves one in no doubt that the function of framing charges is left to the enquiry officer. Though the learned counsel made a reference to the two phraseologies contained in Clause (3) viz., “charging authority” and “the authority conducting the enquiry” in the context in which these two expressions are used, it should be understood that they are referable only to the enquiry officer, because it is he who is authorized to frame charges and not the disciplinary authority. I am, therefore, of the definite view that the Rules authorized the enquiry to frame the charges. In Inspector General of Police (1 supra) the Supreme Court considered a similar situation where a Deputy Superintendent of Police, appointed as an enquiry officer, framed the charges, and served the same on the delinquent officer. He then held enquiry and submitted his report to the Deputy Inspector General of Police, who was competent to award the penalty. The Supreme Court rejected a similar contention advanced on behalf of the delinquent as the one raised in the case on hand and observed that the Rules were silent as to the person who should frame the charges and hold the enquiry. The Supreme Court observed: “Generally speaking, it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority. We do not find anything in the rules which would induce us to read in Rule 3(b)(1) such a requirement. In our opinion, the view taken by the Tribunal that in a case falling under Rule 3(b) the charge memo should be issued by the disciplinary authority empowered to impose the penalties referred to therein and if the charge memo is issued by any lower authority then only that penalty can be imposed which that lower authority is competent to award, is clearly erroneous”. The Supreme Court took note of its earlier judgments in State of M.P. Vs. Shardul Singh-(1970) 1 SCC 108 and P.V.Srinivasa Sastry (2 supra). In the first mentioned case the Supreme Court held that Article 311(1) does not in terms require that the authority empowered under that provision to dismiss or remove an official, should itself initiate or conduct the enquiry preceding the dismissal or removal of the officer or even that such enquiry should be held at his instance. It is further held that the only right guaranteed to a civil servant under that provision is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed. In the latter case the Supreme Court, in the context of Article 311(1) held that in the absence of a rule, any superior authority who can be held to be the controlling authority can initiate a departmental proceeding and that initiation of a departmental proceeding per se does not visit the