* THE HONOURABLE SRI JUSTICE GODA RAGHURAM + WRIT PETITION NOs. 23763 & 24435 of 2003 and 3181 of 2004. % FRIDAY, THIRTEENTH DAY OF AUGUST, TWO THOUSAND FOUR # Dr. Koti John s/o Sri Krupa Rao, Aged about 44 years, Asst. Professor (under suspension), Department of IR&PM (HRM), Andhra University, Visakahapatnam, R/o Quarter No.3, SS Type A.U. Quarters, Opp. A.U. High School, Visakhapatnam – 3. Petitioner Versus $ The Vice Chancellor, Andhra University, Visakhapatnam, and others. Respondents ! Counsel for the petitioner : Sri M.R.K.Chowdary, Senior Counsel Assisted by Mr. M.Sudheer Kumar, Advocate ^ Counsel for the respondents : Dr. P.B.Vijaya Kumar, Standing Counsel for A.U. < Gist : >Head Note: ? 1. (1994) 3 SCC 357 2. 1996 (72) FLR 294 3. AIR 1956 SC 285 4. (1970) 1 SCC 108 5. (1993) 1 SCC 419 6. (1995) 1 SCC 332 7. (1996) 2 SCC 145 8. (1996) 4 SCC 708 9. (1997) 2 SCC 708 10. (1997) 11 SCC 17 11. 1964 (2) LLJ 139 12. AIR 1971 SC 22 13. (1997) 11 SCC 193 14. AIR 1971 MADRAS 434 15. 2001 (4) LLN 903 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTEENTH DAY OF AUGUST TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NOs : 23763 of 2003, 24435 of 2003 & 3181 of 2004 (1) W.P.NO. 23763 of 2003: Between: Dr. Koti John s/o Sri Krupa Rao, Aged about 44 years, Asst. Professor (under suspension), Department of IR&PM (HRM), Andhra University, Visakahapatnam, R/o Quarter No.3, SS Type A.U. Quarters, Opp. A.U. High School, Visakhapatnam – 3. ..... PETITIONER AND 1. The Vice Chancellor, Andhra University, Visakhapatnam. 2. Koona Mohana Rao s/o not known, aged not known, District Judge (Retd.), and Enquiry Officer, r/o D.No. 7-7-26, Balejapalli Street, Srikakulam. 3. Andhra University, rep. by its Registrar, Visakhapatnam. 4. Prof. Y.C. Simhadri s/o not known, aged about 62 years, Vice Chancellor, Andhra University, and R/o Dasapall Hills, Visakhapatnam, 5. Prof. G.C.Patro s/o not known, age not known, Department of PM & IR, Berhampur University, Berhampur. 6. Dr. Babbivardhan s/o not known, age not known, Asst. Principal, A.U.College of Arts & Commerce, Visakhapatnam. 7. A.Shyam s/o Devasahayam, aged 52 years, Assistant Warden, Arts & Commerce Hostel, Andhra University, Visakhapatnam. 8. Dr. T. Subbarayudu s/o Sriranganayakulu, aged 48 years, Associate Professor, IR & PM Department, Andhra University, Visakhapatnam. 9. Dr. D.B.R.M.K. Benerjee s/o Sanjeeva Rao, aged 52 years, Head of the Department, IR & PM Department, Andhra University, Visakhapatnam. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of Mandamus declaring the action of the 1st respondent in appointing the 2nd respondent as Enquiry Officer to conduct enquiry against the petitioner in respect of complaints as communicated in Proceedings Nos. SII(1)2153(1)/03; SII(1)/2153(2); SII(1)/2153(3); SII(1)2153(4); and PA/R/03, dated 19-09-2003 and the consequential charges issued by respondent No.2 as illegal, arbitrary and contrary to the service rules and consequentially to direct the respondent No.2 to refrain from in any way proceeding with the enquiry against the petitioner. For the Petitioner: Mr. M.R.K.Chowdary, Senior Counsel assisted by Mr. M.Sudheer Kumar, Advocate For the Respondents Nos. 1,3, 4 : Dr. P.B. Vijaya Kumar, Standing Counsel for A.U. For the Respondents Nos. 2, 5 to 9: None appeared (2) W.P.NO. 24435 of 2003: Between: Dr. Koti John s/o Sri Krupa Rao, Aged about 44 years, Asst. Professor (under suspension), Department of IR&PM (HRM), Andhra University, Visakahapatnam, R/o Quarter No.3, SS Type A.U. Quarters, Opp. A.U. High School, Visakhapatnam – 3. ..... PETITIONER AND 1. Andhra University rep. by its Registrar, Visakhapatnam. 2. The Vice Chancellor, Andhra University, Visakhapatnam. ….. RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of Mandamus declaring the action of the respondent No.2 in issuing the impugned proceedings in his proceedings No.S.II(1)/237/2003, dated 20-9-2003 as illegal, void, without power, authority or jurisdiction and consequentially to direct the respondents to refrain from in any way proceeding on the basis of the impugned proceedings. For the Petitioner: Mr. M.R.K.Chowdary, Senior Counsel assisted by Mr. M.Sudheer Kumar, Advocate For the Respondents Nos.1 & 2 : Dr. P.B. Vijaya Kumar, Standing Counsel for A.U. (3) W.P.NO. 3181 of 2004: Between: Dr. Koti John s/o Sri Krupa Rao, Aged about 44 years, Asst. Professor (under suspension), Department of IR&PM (HRM), Andhra University, Visakahapatnam, R/o Quarter No.3, SS Type A.U. Quarters, Opp. A.U. High School, Visakhapatnam – 3. ..... PETITIONER AND 1. Andhra University rep. by its Registrar, Visakhapatnam. 2. The Executive Council, Andhra University, rep. by its statutory convening authority viz. the Vice Chancellor, Andhra University, Visakhapatnam. 3. The Vice Chancellor, Andhra University, Visakhapatnam. 4. T.Indrajee (retired District Judge), Enquiry Officer, Andhra University, Visakhapatnam. ….. RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of Mandamus declaring the action of the respondent No.3 in issuing the impugned proceedings in his proceedings No.S.II (Supdt.)/2003, dated 29-1-2004 as illegal, void, without power, authority or jurisdiction and consequentially to direct the respondents to refrain from in any way proceeding on the basis of the impugned proceedings. For the Petitioner: Mr. M.R.K.Chowdary, Senior Counsel assisted by Mr. M.Sudheer Kumar, Advocate For the Respondents Nos.1, 2 & 3 : Dr. P.B. Vijaya Kumar, Standing Counsel for A.U. For the Respondent No.4: None appeared The Court Made the Following ::ORDER:: All these writ petitions have been filed by an Assistant Professor (under suspension), in the Department of IR&PM (HRM), Andhra University. Sri M.R.K.Chowdary, learned Senior Counsel appearing for the petitioner and Dr. P.B.Vijaya Kumar, learned Standing Counsel for the Andhra University have submitted that these writ petitions present substantially similar legal aspects and could be considered and disposed of together. The writ petitions are accordingly taken up for disposal by this common order. Facts in brief : W.P. No. 23763 of 2003:- Respondents 5 to 9 submitted complaints dated 13.7.1999, 25.3.2003, 15.3.2003, 22.7.2003 and 29.7.2002 respectively against the petitioner herein. The Vice Chancellor, in respect of each of the complaints, by separate proceedings dated 19.9.2003 appointed the 2nd respondent, a retired District Judge, as an enquiry officer to enquire into the allegations. The 2nd respondent thereupon issued separate charge memos all dated 10.10.2003 calling upon the petitioner to respond to the charges set out therein. At this stage the writ petition is filed for a declaration that the action of the Vice Chancellor in appointing the 2nd respondent a retired District Judge as an enquiry officer to conduct enquiry against the petitioner in respect the five complaints and the five charge memos issued by the 2nd respondent are illegal and contrary to the service rules and for a direction to the 2nd respondent not to proceed with the enquiry pursuant to the charge memos. The writ petition is thus in the nature of a Writ of Prohibition. The challenge in the writ petition and the relief sought herein is on the basis of the contention that the initiation of the disciplinary proceedings by the Vice Chancellor and the appointment of the 2nd respondent are patently incompetent acts and the 2nd respondent being an outsider is incompetent to conduct disciplinary enquiry against the petitioner who is a teacher of the University. W.P.No. 24435 of 2003:- Dr. G.Yohan Babu, an Associate Professor in the Telugu Department and Assistant Principal, Andhra University College of Arts and Commerce, submitted a report on 9.7.2002 complaining about the misconduct by the petitioner on 9.7.2002, stating that confronted with the misbehaviour of the petitioner in the presence of the students, their parents and the university staff during the admission process, the complainant intervened and advised the petitioner not to misbehave, whereupon the petitioner abused and threatened him. On the basis of the complaint the Vice Chancellor of the University by an order dated 14.10.2002 appointed a retired Magistrate as an enquiry officer to conduct the disciplinary enquiry. A charge memo dated 28.10.2002 was issued calling upon the petitioner to explain. The petitioner submitted his explanation dated 1.1.2003. After a due process of enquiry, an enquiry report dated 14.5.2003 was submitted by the enquiry officer. The report recorded the conclusion that the charges framed against the petitioner were proved in the enquiry. The Vice Chancellor having provisionally accepted the conclusions in the enquiry report issued a show cause notice dated 20.9.2003 proposing the punishment of dismissal from service. The writ petition is filed assailing the show cause notice, inter alia, on the grounds – (a) that it is only the Executive Council of the University that is empowered to initiate disciplinary proceedings or administer a penalty on a teacher of the University; (b) that the Vice Chancellor is incompetent either to initiate disciplinary proceedings, to appoint an enquiry officer or to issue the impugned show cause notice and to administer the penalty on a teacher of the University; and (c) that the conclusion as to the guilt of the petitioner in respect of the charges framed against him could be arrived at only after communication of the enquiry report and consideration of the petitioner’s objections thereto. In as much as the Vice Chancellor having accepted the findings and recommendation of the enquiry officer has issued the impugned show cause memo communicating the enquiry report along with the final show cause notice, the proceedings are in violation of the principles of natural justice and demonstrate a pre- judgment of the guilt of the petitioner, by the Vice Chancellor. W.P.No. 3181 of 2004:- A show cause notice dated 29.1.2004 communicating the enquiry report dated 1.12.2003 and proposing dismissal from the University service, is challenged in this writ petition. The staff members of the Department of IR&PM and Dr. G.V.V.Vijayakumar, an Associate Profession, School of Distance Education of the University, submitted a joint representation dated 18.12.98 complaining that on 17.12.98 the petitioner intruded into the chamber of the Head of the Department of IR&PM and abused Dr. Vijayakumar and the Head of the Department in vulgar and filthy language and when they remonstrated with the petitioner as to such conduct, the petitioner caught hold of the shirt collar of Dr. Vijayakumar and threatened him with dire consequences. Consequent on the complaint, the Vice Chancellor by proceedings dated 24.5.2003 issued a charge memo to the petitioner. By an order dated 3.5.2003 a former District Judge was appointed as the enquiry officer. The petitioner submitted his explanation dated 15.7.2003 to the charge memo dated 25.4.2003. The enquiry officer after a due process of enquiry submitted his report dated 1.12.2003 holding the five charges framed against the petitioner as having been proved. The Vice Chancellor recorded a provisional conclusion of acceptance of the findings in the enquiry report and issued the impugned show cause notice. Challenge is asserted on the same grounds as in W.P. Nos. 23763 and 24435 of 2003. As is apparent the challenge by the petitioner is to the disciplinary proceedings initiated against him. In two of the writ petitions the challenge is at the stage of issue of a second show cause notice and in another at the stage of framing of charges and appointment of an enquiry officer. Number of grounds have been urged by the petitioner to support his challenge to the several stages of the disciplinary proceedings initiated against him. In the considered view of this court, however, it is not appropriate to scrutinise and interfere with the process of disciplinary proceedings at every intermediary stage. The aggrieved officer has always a remedy available to challenge the disciplinary proceedings after the conclusion is arrived at and if a penalty is imposed on him and any appellate remedy therefrom is also availed and results in a conclusion adverse to him. Frequent interference in intermediary stages of disciplinary proceedings results in protraction and undue delay in the conclusion of the disciplinary proceedings and also has the tendency of chilling the confidence and focus of the concerned authorities to process the disciplinary proceedings to various stages and to conclusion. This court therefore does not suppose to deal with all the contentions urged by the petitioner. See in this regard Union of India and Others vs Upendra Singh() and The Managing Director, Madras Metropolitan Water Supply and Sewerage Board and another vs R.Rajan(). Inter alia the petitioner assails the disciplinary proceedings on the following grounds:- A. The Vice Chancellor suffers from a patent and inherent incapacity to initiate disciplinary proceedings, appoint an enquiry officer therefor or to issue the show cause notice against the teachers of the University as the power in this regard is granted exclusively to the Executive Council; B. A retired judicial officer, who is an outsider to the University, cannot be appointed as an enquiry officer as under the Act and the relevant statutes and ordinances; only a Discipline Committee of the university is competent to conduct the disciplinary enquiry. As these contentions alone touch upon the very jurisdiction of the Vice Chancellor to initiate disciplinary proceedings, only these contentions are concerned for analysis and adjudication in this judgment. It is the admitted position that the petitioner is a teacher of the Andhra University and the petitioner and the respondent University are governed by the provisions of the Andhra Pradesh Universities Act 1991 [Act 4 of 1991] (for short ‘the Act’), the statutes and the ordinances thereunder. The Andhra University and the petitioner are governed by the provisions of the Act as u/Sec.4 thereof the Andhra University is deemed to have been established and incorporated under the Act. The Act has come into force w.e.f 2.4.1.1991. All the events relevant to the lis presented herein, having occurred after the said date, the contentions considered in this judgment require to be considered under the provisions of the Act. Relevant provisions of the Andhra Pradesh Universities Act 1991 :- Section 2 sets out the definitions. Sub-sec (14) defines “prescribed” to mean prescribed by statutes, ordinances or regulations. Sub-sec (23) defines “teachers” of the University to mean teachers appointed by the university to give instructions or guide research in the university and constituent colleges. Chapter III sets out provisions relating to the officers of the university, the methods of their selection, appointment and their powers and functions. Sec.9(ii) enacts that the Vice Chancellor shall be an officer of the university. Sec.11(iii) specifies that the Vice Chancellor shall be the academic head and the principal executive officer of the university and shall exercise general control over its affairs and be a whole time officer of the university. According to Sec.13 that the Vice Chancellor, by virtue of his office, shall be a member and Chairman, inter alia of the Executive Council; it shall be his duty to ensure that the provisions of the Act, statutes, ordinances and regulations are duly observed; he may exercise all powers necessary for this purpose; he shall give effect to the decision of the authorities of the university taken in accordance with the powers conferred by or under the Act; have such other powers as may be prescribed and when he considers immediate action desirable he may, subject to the general control of the Chancellor, takes such action as may be necessary even with regard to any matter in which any officer or authority may take action, but shall as soon as may be, report the action taken to the officer or authority concerned. Chapter IV enumerates the authorities of the university including the Executive Council [Sec.17(i)]. The powers of the Executive Council are set out in Sec.19. Sub-sec (5) empowers the Executive Council to appoint teachers of the university subject to such statute as may be prescribed in this behalf. The power to suspend, remove or dismiss teachers of the university subject to such ordinances as may be prescribed in this behalf is conferred on the Executive Council [Sec.19(6)]. Sub-sec 25 of Sec.19 empowers the Executive Council to delegate any of its powers to the Vice Chancellor or to a committee from among its own members or to any employee of the university. Chapter V of the Act sets out the general provisions. U/Sec.31 all the authorities of the university shall have power to appoint committees. Such committees may, unless there be some special provisions to the contrary, consist all members of the authority concerned and of such other persons, if any, as the authority in each case may think fit. Sec.32 enacts that no act or proceeding of any authority or other body of the university shall be deemed invalid by reason only of some defect in the constitution of the authority; or body or by reason of the existence of a vacancy or vacancies among members. Chapter IX sets out the power and procedure for making statutes, ordinances and regulations. Sec.51 empowers the Executive Council to make statutes inter alia in respect of powers, duties and conditions of service of the officers of the university. Sec. 53 enables the Executive Council to make ordinances subject to the provisions of the Act and statutes, inter alia in respect of matters which by the Act or by the statute may be provided for by ordinance. In addition to the relevant provisions of the Act which have been referred to above, there are three other compilations to the contents of which a reference has been made by the counsel for the respective parties. These are – (1) The University Code (‘the Code’), (2) The Administration Manual (‘the Manual’) and (3) The Standing Orders of the Executive Council (‘the Standing Orders’). The University Code: The Code is a compendium of the provisions of the Act, the statutes, ordinances, regulations and rules governing various facets of the administration of the University. Essentially the Code appears to be a compilation of the various statutory and other instruments referred to above, classified into various topical heads to provide easy reference and guidance for the administration of the university. Chapter XXIX of the Code is a compilation of the provisions of the Act, the statutes and ordinances dealing with University Professors, Readers, Lecturers and other teaching posts. Paragraph-8 of this Chapter of the Code states that on sufficient cause shown and after due investigation it shall be competent for the Executive Council to suspend any teacher of the university from office and from emoluments thereof either in whole or in part for a period not exceeding one year or to require him to retire and that the Vice Chancellor may, when he considers the presence of an employee even for a short period undesirable, he may order his suspension and place the matter before the Executive Council at its next meeting. Paragraph-9 lays down that the Executive Council may at any time dispense with the service of a teacher without notice in the event of misconduct on his part or a breach by him of one or more terms of the contract into which he has entered with the university, which in the opinion of the Executive Council makes him unfit to hold the post. Paragraph-10 empowers the Executive Council to terminate the services of a teacher under paragraph-9. Before taking such action the Executive Council shall constitute a committee in accordance with the conditions of the contract executed by the teacher concerned and the teacher shall be given the opportunity of a full hearing before the committee and no action shall be taken against the teacher except on the recommendations of the committee and on its approval by the Executive Council. It would appear that the Syndicate (now redesignated as the Executive Council) of the university by a resolution dated 19.1.1946 and 22.3.1946 had adopted the Administration Manual as a result of which the earlier paragraphs 8 and 9 were substituted by the current paragraphs 8 to 12, in the Code. The Administration Manual: The Manual came into force on and from 1.4.1946. It is a compendium of the various rules governing the employees of the university in areas including the general conditions of service, conduct and disciplinary matters, pay, D.A., PF, Gratuity and other such aspects. Chapter- XII of the Manual contains the Penalty and Appeals Rules. Rule-1 specifies the major and minor penalties which may for good and sufficient reasons be imposed upon the employees of the university. Rule 3(a) specifies that the authority which may impose any of the penalties set out in Rule-1, is the authority in whom the power of appointment of the employee vests. Rule-5 sets out the procedure to be followed for imposition of the minor penalties specified in sub-rules (i), (ii) and (v) of Rule-1. Rule-6(a) specifies that enquiry relating to any disciplinary action may be made by the Vice Chancellor or the Discipline Committee of the Executive Council as circumstances require, or by such other officer or special committee appointed for the purpose. There is also a proviso which is to the effect that in cases of lapses in which the Registrar or any other officer of the University or the Head of a Department or office is directly or indirectly responsible, the Vice Chancellor shall appoint a committee to hold an enquiry and fix liability. Rule 6(b) sets out the procedure to be followed for imposition of the major penalties of dismissal, removal, compulsory retirement or reduction otherwise than when based on facts which have led to an employee’s conviction in a criminal case. The Standing Orders of the Executive Council: The Standing Orders are working instructions for the use of the members of the Executive Council and the university office culled out from the provisions of the Act, the statutes, the ordinances, the regulations and the rules. Chapter-II of the Standing Orders sets out instructions regarding the work, meeting and minutes of the Executive Council. Paragraph-3 herein specifies that the committees as constituted u/Sec.19(25) of the Act shall exercise such powers as are delegated herein and may be delegated to them by the Executive Council from time to time. The Discipline Committee is one such enumerated committee. Paragraph- 8 specifies that as far as possible every member of the Executive Council should find a place in one or other committee and that no one shall ordinarily be a member of more than three committees at the same time. Paragraph-14 dealing with the Discipline Committee states that in cases of misconduct of the teachers of the university and breach of conditions of the agreement, it will conduct an enquiry in accordance with the terms of the agreement executed by them and make its recommendations to the Executive Council. It requires to be noticed that the provisions contained in the Code, the Manual and the Standing Orders are compilations of the relevant provisions of the Act, statutes, ordinances, regulations or rules of the university and other detailed instructions for implementation of the above instruments. The obligation of an officer or authority of the University to confirm to a particular course of substantive or procedural conduct is referable to the relevant provisions of the Act, the statutes, the ordinances, the regulations or the rules, as the case may be. The case of the petitioner, as has already been noticed, is that the Vice Chancellor is patently incompetent to initiate disciplinary proceedings against him. This contention is premised on the assumption that it is the Executive Council which is the exclusive authority of the university empowered to appoint as well as to suspend, remove or dismiss teachers of the university and not the Vice Chancellor and that the power to initiate disciplinary enquiry being an integral component of the power to remove or dismiss a teacher, is vouchsafed