Abdur Rahim vs Osmania University and Others

C.V. Nagarjuna Reddy, J.—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 u/s 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 and another Vs. Thavasiappan, . He also relied upon the judgments of the Supreme Court in P.V. Srinivasa Sastry and others Vs. Comptroller and Auditor General and others, , Transport Commissioner, Madras-5 Vs. A. Radha Krishna Moorthy, , Registrar of Cooperative Societies, Madras and Another Vs. F.X. Fernando, , Government of Tamil Nadu and others Vs. S. Vel Raj, and the five Judges Bench judgment of this Court in K. Swarna Kumari, Subordinate Judge (Compulsorily Retired) Vs. Govt. of Andhra Pradesh and Others, 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:

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 Madhya Pradesh and Others Vs. Shardul Singh, 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 officer concerned with any evil consequences.

Thus, these two contentions raised by the learned Counsel for the petitioner do not stand the test of law as declared by the Supreme Court in the above-mentioned judgments. In the absence of any specific requirement under the Rules that the disciplinary authority alone should frame the charges, there is no basis for the contention that the enquiry officer has no authority to frame the charges.

An identical contention was rejected by a five Judges Bench of this Court in K.Swarna Kumari (6 supra). In that case, disciplinary proceedings were initiated against a Subordinate Judge by this Court on administrative side. The District Judge, who was appointed as enquiry officer, framed charges against the officer and held enquiry. The High Court, after considering the enquiry report, recommended to the Government to impose the penalty of compulsory retirement on the charged officer and the Government, accordingly, passed such an order. In the Writ Petition filed questioning the said order, the charged officer raised the contention that by the time the disciplinary proceedings were initiated, the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 came into operation, under which the disciplinary authority itself has to frame charges and that initiation of disciplinary proceedings ignoring the said Rules and following the procedure prescribed under the A.P. Civil Services (Classification, Control and Appeal) Rules, 1963 vitiated the enquiry and disciplinary proceedings. A Division Bench, which heard the case initially referred it to a Full Bench comprising three Judges. On a reference made by the Full Bench, the case was decided by a Larger Bench comprising five Judges. The Larger Bench, through two different but concurring opinions, repelled the challenge to the procedure followed in the conduct of disciplinary proceedings. G. Raghuram, J. in his opinion observed:

Para 68. One of the grievances of the petitioner herein {vide ground (b)} is that it was not the High Court (the disciplinary authority) but the Inquiry Officer who had framed the charges and the additional charges. This procedure, according to the petitioner, is inconsistent with Rule 20(2) and (3) of the 1991 Rules. According to the petitioner''s interpretation the provisions of Rule 20(2) and (3) require the disciplinary authority itself to draw up the substance of the imputations of misconduct or misbehaviour, into definite and distinct articles of charge.

A true and fair construction of Rule 20(3) does not support the petitioner''s interpretation. Rule 20(3) of the 1991 Rules read with Rule 20(2) enables the disciplinary authority or the cadre controlling authority to draw up the articles of charge or cause to be drawn up. This clause (highlighted herein) of Rule 20(3) permits the disciplinary authority (the High Court) to direct the inquiring authority to draw up the articles of charge. The resolution of the High Court vide its orders dated 19-11-1997 and 6-1-1998 constitute a decision of the High Court causing the inquiring authority to draw up the articles of charge against the petitioner. As this issue (of the interpretation of Rule 20) is one of substance and the grievance of the petitioner in this regard is of substantive violation of the statutory Rules, we consider it integral to the issues presented for reference to this Larger Bench and have therefore considered it appropriate to interpret the provisions of Rule 20 to the above, limited extent.

The case law discussed above clearly establishes that framing of charges by the enquiry officer instead of the disciplinary authority does not per se invalidate the disciplinary proceedings.

The learned Counsel for the petitioner relied on the judgment of the Supreme Court in State Bank of Patiala and others Vs. S.K. Sharma, in support of his contention that in the case of a substantive provision, its non-compliance vitiates the proceedings without applying the test of prejudice. I have carefully considered the said judgment, wherein the Supreme Court held that while a substantive provision has normally to be complied with and the theory of substantial compliance or the test of prejudice would not be applicable in such a case, in the case of violation of procedural provisions, which are generally conceived in the interest of the employee, violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. The Supreme Court while applying the doctrine of prejudice held that except cases falling under "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. The Apex Court further held that even among the procedural provisions, there may be provisions of fundamental character whose violation is by itself proof of prejudice and that no further proof of prejudice is required.

I fail to see how the petitioner''s case falls in any of the situations explained by the Supreme Court in the said case, which vitiates the disciplinary proceedings. Admittedly, a full-fledged enquiry was got conducted by no less a person than a former Judge of this Court. The petitioner failed to show violation of any provision in the Rules either of substantive or of procedural character. On the interpretation of the Rules as above, the enquiry officer was authorized to frame charges and, therefore, there was no violation of any of the Rules.

The contention of the learned Counsel for the petitioner that if the disciplinary authority applied its mind, framed charges and considered the petitioner''s explanation, it would have been possible for it to drop further action is without any substance. As held by the Supreme Court in P.V. Srinivasa Sastry (2 supra) initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences. Therefore, it hardly made any difference whether the disciplinary authority had considered the petitioner''s explanation or not. At any rate, such a plea is not available to the petitioner after initiation of disciplinary proceedings and passing of order, because the petitioner was afforded full opportunity to establish his innocence in the disciplinary proceedings. These two contentions are accordingly rejected.

RE-CONTENTION No. 5:

The gravamen of the charges against the petitioner is that having received the answer scripts of BCJ Entrance Examination, 1995 in his capacity as Head of the Department of Communications and Journalism for the purpose of evaluation, he tampered with the answer scripts with the dishonest intention of helping certain candidates of Urdu medium. The cumulative effect of all the three charges is construed as ''misconduct''.

The learned Counsel for the petitioner submitted that even if the charges as framed were held proved, they do not constitute an enumerated misconduct and that any and every act does not amount to misconduct unless it is specifically prescribed in the Conduct Regulations. It requires to be observed that neither of the counsel filed the Conduct Regulations of the University. Therefore, it is not possible to hold whether the misconduct alleged against the petitioner is included in any of the enumerated acts constituting the act of misconduct under the Conduct Rules/Regulations.

Be that as it may, in a catena of judgments, the Indian and English Courts considered as to what constitutes ''misconduct''. In Pearce v. Foster (1886) 17 QDB 536 the Queen''s Bench Division held that if a servant conducts himself in a way inconsistent with the faithful discharge of his duty in service, it is misconduct. In Laws v. London Chronicle (Indicator Newspapers) Ltd. (1959) 1 WLR 698 the Court of Appeal held that a disregard of an essential condition of the contract of service may constitute misconduct. The Stroud''s Judicial Dictionary described ''misconduct'' as "misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct". In Govinda Menon Vs. Union of India (UOI), the Supreme Court held that "the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings". In State of Punjab and Others Vs. Ram Singh Ex. Constable, the Supreme Court while considering the scope and ambit of the expression ''misconduct'' in Rule 16.2(1) of Punjab Police Manual, 1934 referred to Black''s Law Dictionary and P.Ramanatha Aiyar''s Law Lexicon, which are reproduced hereunder:

Misconduct has been defined in Black''s Law Dictionary, Sixth Edition at page 999 thus:

A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.

Misconduct in office has been defined as:

Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.

P. Ramanatha Aiyar''s Law Lexicon, Reprint Edition 1987 at page 821 defines ''misconduct'' thus:

The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or Statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, which some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.

After considering the said expression with reference to the above reproduced meaning of the expression contained in the Law Dictionaries, the Supreme Court held:

Thus it could be seen that the word ''misconduct'' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve mortal turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.

The judicial opinion on the expression ''misconduct'' appearing in the case law referred to above undoubtedly brings every act of an employee, whose conduct is inconsistent with the faithful discharge of his duties, who had ill-motive or who abused his power, within the sweep of the said expression. Applying this settled legal position, if we examine the act with which the petitioner is charged and held proved viz., he tampered with the answer scripts with the dishonest intention of helping certain candidates of Urdu medium, it certainly embraces all facets of misconduct as described hereinabove. Irrespective of whether such act is enumerated as ''misconduct'' or not in the Conduct Rules, by any standard, the petitioner, who was holding the position of Professor, was not expected to indulge in such a conduct.

The judgment in Union of India (UOI) and Others Vs. J. Ahmed, , relied on by the learned Counsel for the petitioner, is of no help to the petitioner because in the said case the Supreme Court, having referred to the English case law referred to above and also its earlier judgments, held that lack of efficiency or attainment of highest standards in discharge of duty attached to public office does not ipso facto constitute misconduct, and that lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. In the present case, as discussed above, the petitioner is not charged with negligence in discharge of his duty or lack of efficiency or attainment of highest standards, but with bad motive by tampering with the answer scripts. Therefore, this plea of the learned Counsel for the petitioner is wholly meritless.

The submission of the learned Counsel for the petitioner that the petitioner has not committed the alleged misconduct in the course of his official duty can be referred only to be rejected. In his own affidavit he averred that after he was promoted as professor on 1-1-1993 in the department of Communication and Journalism, he was also entrusted with the responsibility of being Head of the Department of Communication and Journalism from February 1993 to August 1995. In paragraph 4 he, inter alia, stated as under:

Evaluation of the 1347 answer scripts was to be done by a team of valuers in less than a week. That along with me a number of persons valued the BCJ answer scripts.

Prof. P.L.V. Rao Ms. Kavita Karan. Ms. Padmaja Shaw. Mr. V. Shyam Sunder. Mr. M. Srinath Reddy.

All Faculty members of the Journalism Department, Osmania University.

Mr. K.Stevenson

Dr. Yadgir Reddy (Library Science Dept) Dr. Vishwa Mohan -do- Dr. Baig Ehsas (Urdu Dept) Dr. Afzaluddin Ahmed -do-

The University has not issued any other instructions or guidelines to the effect as to who could be appointed as evaluators. As Head of the Department, it was my responsibility to get the evaluation completed. After the evaluation process was over, the answer scripts would have to be sent to the examination branch where these answer scripts are decoded and thereafter the result of the BCJ Entrance Test would be notified".

Thus, on the petitioner''s own admission it was his responsibility to get the valuation done and completed as Head of the Department. Therefore, I do not find any merit in this plea of the learned Counsel for the petitioner that either evaluation of the answer scripts was not part of his official duty or that the petitioner was not entrusted with the responsibility of evaluation of answer scripts. As admitted by the petitioner, he was indeed entrusted with such responsibility and he committed misconduct in discharge of his official duty.

For the above mentioned reasons, this contention of the learned Counsel for the petitioner is rejected.

RE-CONTENTION No. 6:

A perusal of the enquiry report shows that after the news item was published, respondent No. 3 directed Professor K.Madhusudhan Reddy to conduct enquiry and, accordingly, the latter conducted preliminary enquiry, wherein he examined some witnesses and recorded their statements, examined the answer scripts which were found to have been tampered on the basis of the preliminary report, the answer scripts were revalued and 70 answer scripts, which were found to contain discrepancies, were sent to the handwriting expert of the Government. The handwriting expert opined that 52 answer scripts contain variance in hand writing and requested the University authorities to send specimen writing of the persons suspected for comparison of the hand writing, but the authorities did not send the admitted or specimen writing to the handwriting expert. On the basis of the preliminary enquiry, BCJ Entrance Examination 1995 was cancelled and a fresh examination was held. After considering the preliminary enquiry report and the opinion of the hand writing expert, respondent No. 3 initiated disciplinary action. During enquiry 13 witnesses were examined and Exs.A.1 to A.22 and Exs.D.1 to D.3 were marked. The enquiry officer framed the following points:

Whether the evidence on record establishes that the Charged Officer had tampered with any of the answer scripts in Urdu medium with dishonest intention securing their admissions;

Whether the Charged Officer was justified in asking Dr. Baig Ehsas, Reader in Urdu for evaluating subjective type of questions for which knowledge of political science and social science and current events are necessary and whether his selection for evaluating the papers was made with any dishonest intention; and

3) Whether the evaluation of answers made in English in respect of questions 7, 8 and 9 by the candidates or Urdu medium is proper and whether the candidates who had chosen Urdu as their medium by noting it the same on the answer scripts had the right of such choice.

On consideration of the material on record, the enquiry officer gave his finding on Charge No. 1 as under:

The fact that the answer-scripts contained the writings of more than one individual, is evident from the report of the hand-writing expert. The same has not been disputed by the Charged Officer at any stage of enquiry. He simply stated that he has not done it and that anybody to whom the answer-scripts were given for purpose of evaluation, might have done it. It is the evident that the Charged Officer, 10 and 11 alone have corrected the answer-scripts in Urdu medium. No suggestion was even made to these witnesses that they tampered with the answer-scripts. It is also clear from the evidence of PW.13 that the answer- scripts were in exclusive custody of the Charged Officer and they were taken out only for purpose of correction and even such correction was made only in his presence. So, the tampering as is found in some of the answer-scripts could not have been done without the knowledge of the Charged Officer even where it is made by some other person. The Charged Officer even went to the extent of stating that he does not know to write Urdu properly. It that is so, it cannot be said that he is competent to correct the answer-scripts written in Urdu and some of the questions, particularly, question Nos. 7, 8 and 9 are intended to test the language capability of the students. I am of the opinion that the Charged Officer has gone to the extent of denying his capacity to write Urdu properly to improbablise the allegation of tampering of answer-scripts by him forgetting the fact that by doing so he would be admitting that he is not competent to correct the answer-scripts. So, I am of opinion that the statement of the Charged Officer that he does not know Urdu properly, is not correct. As he is the person who was an exclusive possession of the answer-scripts, it is for him to come out with such circumstances as would have probablised others to tamper with the answer- scripts. The perusal of some of the answer-scripts particularly those bearing Nos. 1244, 1282, 651, 930, 963 and 467 clearly show that there is difference in handwriting, change of ink in respect of those scripts. I am able to see them with naked eye the change of handwriting and change of ink. In respect of answer- scripts bearing code number 1078, I find that tickings made in respect of 5 bits in respect of Question No. 4 were struck off and re-ticking was made and I find that all the 5 re-tickings were valued and found to be correct. In respect of answer- script bearing code number 855, question No. 4 is answered with different ink and some cancellations were made. The purpose for which tampering of answer- scripts is made, is irrelevant and no evidence could be given about it. So, the objection that no witness has attributed any dishonest intention to him in such tampering is irrelevant.

On the above reasoning, the enquiry officer held that the allegation of tampering must be deemed to have been proved.

With regard to Charge No. 2, the enquiry officer considered the fact that, during his examination as PW.10, Dr. Baig Ehsas, who was examined as PW.10, failed to elaborate on the point mentioned in the key "Rs.800 crores HRD Ministry" and concluded that the said person, who was only a Reader in Urdu Department, did not have the proficiency in the subject of social science, current affairs and socio- economic problems required for evaluation of the answer scripts and, accordingly, he held that the petitioner erred in selecting PW.10 for correcting question No. 1.

Similarly, under Charge No. 3, he found with reference to the evidence that the petitioner got the corrections made in respect of answers to question Nos. 7, 8 and 9 written both in Urdu and English and took the highest marks into consideration and in some cases answers given in English were simply struck off. The enquiry officer referred to the guidelines issued by the Department, which require that the candidate should answer the questions in their respective medium and that the answers given in English part of the questions by the candidates of Urdu medium ought not to have been taken into consideration and that even in that regard there was no uniformity in the evaluation. Accordingly, he found that the petitioner has not got the answers evaluated correctly and found the petitioner guilty of Charge No. 3.

On a careful consideration of the enquiry report in its entirety, I am of the considered view that the enquiry officer has not only considered the evidence, both oral and documentary, adduced before him, but also analyzed it in a careful manner in holding the petitioner guilty of the charges. The findings of the enquiry officer are thus based on legal evidence.

The scope of judicial review of the orders passed in the disciplinary proceedings, by this Court under Article 226 of the Constitution of India is well delineated. This Court will not sit as a Court of appeal nor substitute its view with that of the domestic tribunal if such a view taken by it is a plausible one. While exercising the power of judicial review, this Court will not re-appreciate the evidence and preponderance of probabilities, and not proof beyond reasonable doubt, is sufficient to hold an employee guilty. The insufficiency of evidence is not a ground for interference if there is some legal evidence available to support the conclusion of the domestic tribunal.(See: State of Andhra Pradesh and Others Vs. Chitra Venkata Rao, , K.L. Shinde Vs. State of Mysore, , Jiwan Mal Kochar Vs. Union of India (UOI) and Others, , B.C. Chaturvedi v. Union of India (1995) 6 SCC 750 , High Court of Judicature at Bombay through ite Registrar Vs. Udaysingh Nimbalkar and Others, , The High Court of Judicature at Bombay, Through Its Registrar Vs. Shashikant S.Patil and Another, , Karnataka Bank Ltd. v. A.L. Mohan Rao (2006) 1 SCC 63 and South Bengal State Transport Corpn. Vs. Swapan Kumar Mitra and Others, ).

For the above mentioned reasons, I do not find any reason to accept this contention and the same is, accordingly, rejected.

RE-CONTENTION No. 7:

After the enquiry report was submitted by the enquiry officer, the same was placed before the Executive Council in its meeting held on 21-7-1997, wherein the Executive Council felt that while the findings of the enquiry officer were correct, the punishment suggested by him was inadequate and does not commensurate with the proven misconduct. It, accordingly, issued a show-cause notice calling upon the petitioner to show cause why he should not be removed from service. The petitioner submitted his explanation dated 27-9-1997. Thereafter the Executive Council in its meeting held on 22-11-1997 reconsidered its earlier view and imposed a lesser punishment than the one proposed deciding to demote him as reader instead of removing him from service. These facts clearly suggest that the Executive Council duly applied its mind to the explanation submitted by the petitioner and imposed a lesser punishment than what was proposed. If the Executive Council has not applied its mind to the explanation submitted by the petitioner, it would have ordinarily imposed the punishment of removal as proposed by it in the show-cause notice. Therefore, I do not find any merit in the submission of the learned Counsel that the Executive Council has not considered the explanation of the petitioner before passing the impugned order.

For all the reasons stated above, the Writ Petition fails and is accordingly dismissed.