C.W.P.No.16917 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 14.07.2011 C.W.P.No.11022 of 2010 Dr.Balbir Chand Josan ....Petitioner(s) vs. Chandigarh Administration, U.T., Chandigarh and others ....Respondent(s) C.W.P.No.16917 of 2010 Dr.Balbir Chand Josan ....Petitioner(s) vs. Chandigarh Administration, U.T., Chandigarh and others ....Respondent(s) C.W.P.No.17347 of 2010 The Governing Body, DAV College, Sector 10, Chandigarh ....Petitioner(s) vs. Chandigarh Administration and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Akshay Bhan, Advocate, for the petitioner in CWP Nos.16917 & 11022 of 2010 and for respondent No.2 in CWP No.17347 of 2010. Mr.Rajiv Atma Ram, Sr.Advocate with Mr.Saurabh Arora, Advocate, for the petitioner in CWP No.17347 of 2010 and for respondent No.3 in C.W.P.Nos.16917 of 2010 and for respondents No.3 and 4 in C.W.P.No.11022 of 2010. Mr.Amar Vivek, Standing Counsel for respondent No.1. Mr.Anupam Gupta, Advocate, for respondent No.2 in CWP Nos.11022 and 16917 of 2010 and for respondent No.3 in CWP No.17347 of 2010. C.W.P.No.16917 of 2010 -2- AUGUSTINE GEORGE MASIH, J. This order would cover CWP Nos.11022, 16917 and 17347 of 2010. Facts in these cases are inter-twined and, therefore, are narrated in a sequence as the events have unfurled leading to the filing of these three writ petitions out of which the first two writ petitions i.e. CWP Nos.11022 and 16917 of 2010 have been preferred by Dr.Balbir Chand Josan, Principal, DAV College, Sector 10, Chandigarh and CWP No.17347 of 2010 filed by the Governing Body of the DAV College Sector 10, Chandigarh (hereinafter referred to as the Governing Body). Dr.Josan was appointed as the Principal of the DAV College Sector 10, Chandigarh. Vide letter dated 1.4.2008, the decision was communicated that the petitioner had been selected as Principal, DAV College, Sector 10, Chandigarh and was directed to join as such. In pursuance thereto, the petitioner joined on 2.4.2008. Subsequently, appointment letter dated 1.7.2008 was issued by the Governing Body. The petitioner continued to serve as Principal till resolution dated 19.5.2010 was passed by the Governing Body ordering his transfer. This decision of the Governing Body was challenged by the petitioner through CWP No.11022 of 2010 on various grounds. On 18.6.2010, this Court while issuing notice of motion stayed the operation of the impugned resolution dated 19.5.2010. Replies stand filed by the respondents. The interim order continues to operate. During the pendency of the writ petition, the Governing Body in its meeting held on 14.9.2010 passed a resolution placing the petitioner under suspension with immediate effect as disciplinary proceedings were C.W.P.No.16917 of 2010 -3- contemplated against him. Order dated 15.9.2010 was served upon the petitioner as per the decision. Dr.Josan moved an application dated 16.9.2010 before the Registrar, Panjab University, Chandigarh requesting for staying the order of suspension passed by the Governing Body on the ground that the Governing Body has not sent the suspension order to the Registrar along with the charge-sheet as required under Regulation 9.2 of Chapter VIII (E) of the Panjab University Calendar Volume-I (2007) and that he has not been supplied with the copy of the charge-sheet by the Governing Body till date and also that he had filed CWP No.11022 of 2010 wherein his transfer had been stayed and the matter is sub-judice before this Court. Taking these facts into consideration, Registrar, exercising his powers under Regulation 9.2 stayed the order of suspension passed by the Governing Body till further orders on 16.9.2010 itself. Thereafter, on 17.9.2010, Registrar, kept the order dated 16.9.2010 in abeyance till further orders in view of Regulation 4.2 of Chapter III and Section 31 (2) (e) of the Panjab University Act, 1947 (hereinafter referred to as 1947 Act). This order is challenged by Dr.Josan by filing CWP No.16917 of 2010 wherein this Court vide order dated 22.9.2010, allowed Dr.Josan to continue to function as Principal of DAV College, Sector 10, Chandigarh, but shall not take any policy decision with respect to the functioning of the College. Dr.Josan made a statement before the Court that he shall not undertake any financial transaction on behalf of the College and shall allow the existing financial arrangement to continue. This interim order continues till date. Challenge to the order dated 17.9.2010 passed by the Registrar, Panjab University, Chandigarh is based on the ground that this order is a C.W.P.No.16917 of 2010 -4- non-speaking order. The Registrar ceases to have an authority under Regulation 9.2 once an order is passed under this regulation staying the order of suspension. There is no power of review with the Registrar. The order dated 16.9.2010 was passed by the Registrar while exercising his powers under Regulation 9.2 under Chapter VIII (E) of the Panjab University Calendar Volume-I (2007) which chapter deals with conditions of service and conduct of teachers in non-government affiliated colleges whereas Chapter III is regarding appointment and duties of Registrar and other Administrative Officers and order dated 17.9.2010 has been passed under Regulation 4.2 of this Chapter III. These two chapters are distinct, conferring different powers on the Registrar, where the operation and sphere of the powers in jurisdiction are separate, therefore, the order is illegal. There is no mis-statement of facts by Dr.Josan which would call for exercise of power of review which although is not available under the statute/Regulations but could justify the passing of order dated 17.9.2010. When CWP No.16917 of 2010 was taken up for hearing by this Court on 22.9.2010, counsel for the Chandigarh Administration produced a photocopy of the letter dated 20.9.2010 addressed by the Registrar (Education) (C) for Education Secretary, Chandigarh Administration, informing the General Secretary of the Governing Body DAV College, Sector 10, Chandigarh that the decision dated 15.9.2010 is invalid in view of condition/para No.3 of the order dated 26.11.1999 passed by the office of Education Secretary, Chandigarh Administration as the same had taken without associating the Director, Higher Education, U.T., Chandigarh (hereinafter referred to as Director). C.W.P.No.16917 of 2010 -5- On receipt of the said letter dated 20.9.2010, CWP No.17347 of 2010 was preferred by the Governing Body challenging it on the ground that condition/para No.3 of the letter dated 26.11.1999 only talks of inviting the nominee of the Director and the nominee of the Vice Chancellor, Panjab University, Chandigarh in every meeting of the Governing Body. In case no invitation is sent, any decision taken by the Governing Body may not be considered valid by the Director. It has been pleaded that letter dated 10.9.2010 was sent to the Director requesting him to attend the meeting which was fixed for 14.9.2010. The said letter was duly received by the Director and vide communication dated 13.9.2010, the Director showed his inability to attend the meeting due to pre-scheduled official assignments and stated that at least two weeks' notice may be given before scheduling the meeting of the Managing Committee. The nominee of the Vice Chancellor was also invited for the meeting and he did attend the meeting on 14.9.2010 whereas the Director chose neither to attend the meeting nor to send his nominee in the meeting nor any request was made for re-scheduling the meeting. It is further pleaded that as per the provisions of Chapter VIII (A) of the Panjab University Calendar Volume-I (2007), there is no requirement of the statute or law for the nominee of the Vice Chancellor or the nominees of the Director to be members of the Managing Committee/Governing Body or for calling them for every meeting. The presence of the Director or his nominee in each Governing Body meeting is not mandatory and in any case, the nominees are the members of the Governing Body like any other member with no extra privilege or authority and the decisions are taken by the majority. Upon notice of motion issued in this case, reply has been C.W.P.No.16917 of 2010 -6- filed by the Director wherein an objection has been raised with regard to the maintainability of the writ petition by questioning the locus of the alleged authorized signatory who had instituted the present writ petition. It has been stated that one Mrs.Madhu Bahl at the behest of an alleged authority letter dated 23.9.2010 has filed the writ petition in pursuance to a resolution passed by the Governing Body. The authority letter has been issued by the General Secretary of the Governing Body who has been delegated the powers of the Governing Body, who cannot under law further delegate his powers and thus, is not competent to issue any authority in favour of Mrs.Madhu Bahl. Further, as per resolution No.5 passed in the Governing Body Meeting dated 14.9.2010, the Governing Body has bestowed all its powers upon its President/Secretary till further orders, which is not permissible or legal, thereby usurping the authority and powers of the nominees of the Panjab University as well as the Director. It has been stated that the notice dated 10.9.2010 did not contain such an agenda whereby the powers of the Governing Body were to be delegated in a single individual like the President/General Secretary. The letter dated 20.9.2010 has been sought to be supported on the ground that the notice dated 10.9.2010 only stated that the meeting was called to discuss the case regarding Balbir Chand Josan, Principal, DAV College, Sector 10, Chandigarh. As the meeting was an emergent meeting, the Governing Body could not discuss the issue of disciplinary action, suspension, issuance of charge-sheet and vesting of powers of the Governing Body in a single individual without prior agenda and its due circulation to the answering respondent and to the Panjab University. The decision of the Governing Body conveyed vide order dated 15.9.2010 which was taken without C.W.P.No.16917 of 2010 -7- associating the Director was invalid in view of the express condition/para No.3 of the letter dated 26.11.1999. The answering respondent thereafter advised the petitioner to reconvene a meeting of the Governing Body by giving 15 days due notice. By this action of the Governing Body, the Director and the Panjab University stand altogether excluded from the functioning of the Governing Body till further orders as per the decision. This is contrary to the spirit of the Punjab Grant-In-Aid Rules, 1979 (hereinafter referred to as Grant-in-Aid Rules) On this basis, dismissal of writ petition has been sought. During the course of hearing, Mr.Rajiv Atma Ram, learned Senior Counsel appearing for the Governing Body, DAV College, Sector 10, Chandigarh, states that CWP No.11022 of 2010 has been rendered infructuous in view of stay granted by this Court of the resolution of the Governing Body dated 19.5.2010 whereby Dr.Josan was transferred from DAV College, Sector 10, Chandigarh and also in the light of the fact that the Governing Body has passed resolution to suspend him with his headquarters at Chandigarh which decision when conveyed vide order dated 15.9.2010 stand challenged in CWP No.16917 of 2010 by Dr.Josan, rendering the order of transfer redundant. This statement of the counsel for the Governing Body could not be disputed by Mr.Akshay Bhan, learned counsel for Dr.Josan. Accordingly, the writ petition is required to be disposed of as having been rendered infructuous. For deciding CWP No.16917 of 2010 wherein challenge is to the order dated 17.9.2010 passed by the Registrar, Panjab University, Chandigarh keeping his earlier order dated 16.9.2010 in abeyance till further orders, the provisions under which orders dated C.W.P.No.16917 of 2010 -8- 16.9.2010 i.e. Regulation 9 and 17.9.2010 i.e. Regulation 4.2 have been passed by the Registrar, Panjab University need to be looked into, which read as follows:- “Chapter VIII (E) CONDITIONS OF SERVICE AND CONDUCT OF TEACHERS IN NON-GOVERNMENT AFFILIATED COLLEGES. 1. to 8 xxxxx xxxxx xxxxx 9.1 Subject to what is contained in Regulation Nos.10, 11 and 12 the Governing Body of a non-Govt. College shall be entitled to determine the engagement of a permanent employee, for a sufficient cause, after giving him three months' notice in writing or on payment of three months' salary in lieu thereof. Provided that the Governing Body has the right to suspend an employee with immediate effect in case of gross misconduct or moral turpitude. In doing so he shall be served with a charge-sheet and informed in writing of the ground on which action is proposed to be taken. 9.2 A copy of the order of suspension together with a copy of the charge-sheet shall be sent within a week to the Registrar who may direct that the teacher shall not be placed under suspension . 9.3 The period of suspension shall not exceed three months within which the case must be decided.” C.W.P.No.16917 of 2010 -9- “Chapter III APPOINTMENT AND DUTIES OF REGISTRAR AND OTHER ADMINISTRATIVE OFFICERS 1 to 4.1 xxxx xxxx xxxx xxxx 4.2 The Registrar shall exercise his powers and discharge his duties under immediate direction of the Vice-Chancellor and the Syndicate and the general control of the Senate.” A perusal of Regulation 9.1 would indicate that the Governing Body of a non-government college subject to Regulations 10, 11 and 12 is entitled to terminate the engagement of a permanent employee for a sufficient cause. This can be done after giving him three months' notice in writing or on payment of three months' salary in lieu thereof. The Governing Body has further been given the right to suspend an employee with immediate effect in case an employee commits an act of gross-misconduct or moral turpitude. When such an action is taken by the Governing Body, it shall have to serve a charge-sheet on the employee, informing him in writing the grounds on which action is proposed to be taken. Regulation 9.2 mandates that a copy of the order of suspension together with a copy of the charge-sheet shall be sent by the Governing Body to the Registrar within a week who may direct that the teacher shall not be placed under suspension. Regulation 9.3 provides the maximum period of suspension i.e. 3 months' within which the case must be decided. A conjoint reading of the above Regulations, so that they blend harmoniously, when churned, would lead us to a conclusion that the right of the employer to suspend its employee and that too to its satisfaction C.W.P.No.16917 of 2010 -10- stands recognized but with certain qualifications thereto have been provided. Although the Governing Body has a right to suspend an employee with immediate effect in case of gross misconduct or moral turpitude but charge-sheet will have to be served on the employee informing him in writing the grounds on which the action is proposed to be taken. The mandate of Regulation 9.1 is not that the charge-sheet has to be served simultaneously along with the order of suspension as there may be situations where action cannot brook any delay and require immediate reaction from the employer. But that does not mean that the management can, after suspending its employee, take no further steps and sleep over it. When Regulation 9.1 is read along with Regulation 9.2, the mandate would be of serving the charge-sheet disclosing therein in writing the grounds on which the action is proposed to be taken within one week from the date of passing of the order of suspension by the Governing Body. The period from the date of passing of order of suspension and the serving of the charge- sheet cannot exceed one week as the Governing Body under Regulation 9.2 is mandated to send a copy of the suspension order together with a copy of the charge-sheet to the Registrar within this period. The Registrar under this Regulation is empowered to direct that the teacher shall not be placed under suspension. This obviously means that the Registrar would pass such an order on consideration of the order of suspension and the charge-sheet. Such an order can also be passed where charge-sheet is not served within one week of the order of suspension on the employee or where the Governing Body fails to send a copy of the order of suspension together with a copy of the charge-sheet to the Registrar within the time stipulated. This is a safeguard provided under the Regulations to save the employee C.W.P.No.16917 of 2010 -11- from harassment and misuse of power of suspension by the Governing Body to put undue pressure on the employee by keeping him under suspension without further proceeding in the matter. Although this Regulation does not specify the charges for which the Registrar would exercise this power but the Registrar has been given the powers to decide whether the order of suspension in the given facts and circumstances is justified or not and also whether a case of gross-misconduct or moral turpitude is made out or not. However, the Registrar is not restrained from passing such an order when the order of suspension together with a copy of the charge-sheet is brought to his notice by the employee concerned which do not fall in these two categories. If in a case such a situation does not arise i.e. in the absence of the order of the suspension and/or the charge-sheet, the Registrar cannot pass an order directing that the teacher shall not be placed under suspension prior to expiry of one week from the date of passing of the suspension order. As per Regulation 1 (ii) of Chapter VIII (E) 'teacher' includes Principal and, therefore, it would be applicable to the case in hand. It goes without saying that while passing final order in exercise of power under Regulation 9.2, staying the order of suspension, an opportunity of hearing be given to the management so that the principles of natural justice are duly complied with. This final order be passed expeditiously and within a reasonable time. The order dated 16.9.2010 passed by the Registrar, Panjab University, Chandigarh in the light of the above, is not in accordance with Regulation 9.2. The order of suspension was passed on 15.9.2010 thus, the Governing Body had a week's time to serve a copy of the charge-sheet on Dr.Josan. The Registrar, thus,could not have taken action on the application dated 16.9.2010under Regulation 9.2 of Chapter VIII (E) staying the order C.W.P.No.16917 of 2010 -12- of suspension passed by the Governing Body. He was required to wait for the mandatory period of one week for the Governing Body to send the order of suspension along with the charge-sheet to him. He could have proceeded to exercise his powers in case the charge-sheet, which had been served on Dr.Josan on 18.9.2010, had been brought to the notice of the Registrar and on consideration of the same, if he was satisfied that the allegations against him in the charge sheet did not disclose commission of an act of gross misconduct or moral turpitude, order could have been passed by the Registrar under Regulation 9.2 staying suspension. This could have been done on 18.9.2010 or thereafter but not before that. It would not be out of way to mention here that charge sheet was served on Dr.Josan on 18.9.2010 i.e. within one week of his order of suspension dated 15.9.2010. The contention of the counsel for the petitioner that the Registrar becomes functus officio once he exercises his powers under Regulation 9.2 cannot be accepted. Although there is no specific power of review provided under the Regulations but in the light of the fact that once the powers have been exercised by the Registrar, he has the power to recall his order and this power is available to him under Section 21 of the General Clauses Act, 1897. In any case, the order dated 16.9.2010 was only an interim order as is apparent from the concluding words “till further orders” and not a final order as has been sought to be asserted by Dr.Josan. Probably realizing his mistake, the Registrar, Panjab University, Chandigarh proceeded to pass an order dated 17.9.2010 but under Regulation 4.2 Chapter III Section 31 (2) (e) of the 1947 Act, keeping the earlier order dated 16.9.2010 in abeyance till further orders. Regulation 4.2, as reproduced above, would show that the Registrar shall C.W.P.No.16917 of 2010 -13- exercise his powers or discharge his duties under immediate direction of the Vice Chancellor and the Syndicate and the general control of the Senate. The Registrar, Panjab University, Chandigarh has preferred not to file any reply to the writ petition. There is nothing on the record to suggest that there was any direction of the Vice Chancellor, the Syndicate or the Senate in this regard and, therefore, the order dated 17.9.2010 passed by the Registrar under Regulation 4.2 cannot be said to be in accordance with law. Although the impugned order dated 17.9.2010 as challenged by Dr.Josan in this writ petition is not sustainable, however, the order dated 16.9.2010 of the Registrar is also not in accordance with law as has been held above and, therefore, cannot withstand the scrutiny of the Court. While deciding a case, the Court is not merely to proceed and decide the validity of the order under challenge but it has also to see as to whether the order which would come into operation after setting aside of the subsequent order is itself sustainable in law or not. By giving sanctity to an illegal order the Court would be putting a stamp of approval on an illegal order or act of an authority which would perpetuate injustice and encourage misuse of power and authority. The power conferred on the High Court under Article 226 of the Constitution is to advance justice and not to thwart it. The very purpose of such constitutional powers would be frustrated if an Act of Court perpetuates injustice by passing an order in a mechanical manner which would render justice a by-product of error in the name of deciding a case. Therefore, no relief can be granted to Dr.Josan in this writ petition. Mr.Rajiv Atma Ram had raised an objection with regard to maintainability of this writ petition in the light of Section 7-a of The Punjab C.W.P.No.16917 of 2010 -14- Affiliated Colleges (Security of Service of Employees) Act, 1974 (hereinafter referred to as 1974 Act ) and the judgment of the Supreme Court in T.M.A.Pai Foundation and others vs. State of Karnataka and others, 2002 (9) SCC 1 on the ground of availability of an alternative remedy of approaching the Education Tribunal but the same has not been considered in the light of the fact that the counsel for the parties stated at the Bar that there was no earlier judgment of this Court on the Regulations in issue and on this aspect. The provisions required interpretation to clear doubts which has been attempted and done above. Now moving on to CWP No.17347 of 2010 filed by the Governing Body challenging the letter dated 20.9.2010 issued by the Registrar (Education) (C) for Education Secretary, Chandigarh Administration informing the Governing Body that its decision dated 15.9.2010 is invalid. Mr.Rajiv Atma Ram submits that the Governing Body of the College is a multi-member body where Director is having the same powers as any other member of the Governing Body. He does not dispute the fact that the Director is a member of the Governing Body but he states that there is no extraordinary power with the Director to veto the decisions taken by the Governing Body. There is no provision under the 1947 Act or the Grant-in-Aid Scheme or the 1974 Act which provides that in case the Director or his nominee is not present in a meeting, the decision taken therein would not be valid. Notice of the meeting dated 14.9.2010 was duly served on the Director vide letter dated 10.9.2010, who only expressed his inability to attend the meeting due to his pre-occupation. He did not make a request for deferring/postponement of the meeting. The only ground given in the letter dated 20.9.2010 (which is under challenge in the writ petition) C.W.P.No.16917 of 2010 -15- is that the decision taken in the said meeting held on 14.9.2010 is invalid in view of condition/para No.3 of the letter dated 26.11.1999. He contends that as per the provisions of the Panjab University Calendar Volume-I