DEEPALI PHUKAN vs DIBRUGARH UNIVERSITY and 3 ORS.

1.Heard Mr. S.S. Dey, learned senior counsel for the petitioner. Also heard Mr. N.C. Das, learned senior counsel for the respondent Dibrugarh

University.

The petitioner who is a graduate engineer was initially allowed by the respondent Dibrugarh University to hold the charge of the post of University

Engineer in the year 2003 and in the year 2004, she was regularly promoted to the said post. While so serving, the petitioner was served with two

show-cause notices both dated 31.05.2013. The charges mainly pertain to the allegation that while undertaking the work of developing and raising the

level of the land for the construction of buildings of the Dibrugarh University Institute of Engineering and Technology, certain procedural requirements

were not followed while issuing the work orders thereof and the manner in which the bills were approved was also contrary to the required procedure

to be followed. What is noticeable is that the show-cause notices dated 31.05.2013 were issued under Article 33(i)(ii)(ix) of the Dibrugarh University

Employees Service Conditions Ordinance 2000 as amended upto to May 2007 (in short Ordinance of 2000). The petitioner submitted her reply to the

said show-cause notice and thereafter an enquiry was held as contemplated under Article 32(v) of the Ordinance of 2000.

After the enquiry, an enquiry report dated 28.12.2015 was submitted before the disciplinary authority. Upon the enquiry report being submitted, the

disciplinary authority being the Registrar Dibrugarh University issued a notice to the petitioner dated 05.07.2016. By the said notice, the petitioner was

served with a copy of the enquiry report and was also required to submit any written representation on the enquiry report, if so desired. The petitioner

was further asked to submit the reply within a period of 21 days from the date of receipt of the said notice. The petitioner accordingly submitted a

detailed reply/representation vide her reply which is annexed as Annexure-25 to the writ petition. It is noticed that in the reply, the petitioner had

specifically dealt with the various findings and conclusions of the enquiry report in respect of the individual charges by giving her detailed reply to the

same. It is also noticed that the said reply was placed before Executive Council of the University in its 332nd meeting which was held on 24.10.2016.

From the notice pertaining to item No.10 of the 332nd meeting, it is seen that in the 331st meeting held on 27.07.2016, a decision was taken that the

petitioner be directed to submit her response to the charges brought against her by the enquiry committee and that thereafter, the petitioner had

submitted her reply to the enquiry report and the said reply of the petitioner was sent to the members of the Executive Council for perusal and

necessary action as per the communication dated 06.09.2016. It is further noticed that thereafter, the resolution No.14 of the Executive Council of the

Dibrugarh University in its 332nd meeting was taken. The resolution is as follows:-

“As approved by the then Vice-Chancellor, 2 (two) Inquiry Committees were constituted to ascertain the alleged fraudulent act of the University

Engineer on submission of false vouchers against claimed reimbursement of expenditure incurred by the University for repairing and maintenance of

various civil, sanitary, water supply and electrical works of the University and also to inquire into the allegation that payments were made for the

works “Developing and Raising of Land for the proposed construction of hostel Building for DUIET (2 Nos.)†without completion of the works

vide No. DU/RG/H.01.03/13/8963, DATED 09.04.2013 AND VIDE No. DU/RG/H.01.03/13/8964, DATED 12.04.2013, respectively. The

Committees were requested to verify all the relevant documents submitted by the University Engineer against the advances drawn by her for the

repairing and maintenance works and also to inspect the site(s) and interrogate officials / persons connected with the work(s) to find out the truth. The

findings of the said Committees were placed before the 319th Meeting of the Executive Council, D.U. held on 06 May, 2013. The Council accepted

the same and authorized the Vice-Chancellor to consider approval of the charges to be framed on the basis of the findings of the Inquiry Committees

and directed the Registrar to serve the charge sheets to the University Engineer. Accordingly, charge notices were served to the University Engineer,

D.U. vide No. DU/RG/H.01.04/13/9024-25, dtd.31.05.2013.The replies of the University Engineer, D.U. against the charge sheet notices served on

her as per decision of the Executive Council in its 319th Meeting held on 06.05.2013 were placed in the 320th Meeting of the Executive Council, D.U.

held on 13 August, 2013. The Members of the Council examined the replies given by Smt. Deepali Phukan, University Engineer against the charge

sheet notices served on her and opined that the university administration should prepare point-wise observations on her responses raised so that a

proper decision can be taken by the Council in this regard. Accordingly, the Secretary placed before the Council the point-wise observations prepared

by the university administration against the replies submitted by Smt. Deepali Phuka, University Engineer, D.U. against the charges leveled against

her. The 322nd Meeting of the Executive Council held on 14th March, 2014 discussed the matter very seriously and observed that for proper

investigation of both the irregularities committed, an Inquiry Committee be constituted comprising members from the technical background and legal

background. The Council authorized the Vice-Chancellor to constitute the Committee. The Inquiry Committee constituted vide No.

DU/RG/H.01.04/14/0863, dtd. 24.12.2014 has conducted the inquiry into the charges leveled against Smt. Phukan and submitted their reports. The

reports of Committee have already been sent to the Hon’ble Members of the Council for perusal vide letter N. DU/RG/A02.03/16/1585, dtd.

12.07.2016.The 330th Meeting of the Executive Council held on 27 June, 2016 directed to serve notice with a copy of the inquiry report to Smt.

Phukan asking as to why the University should not accept the report of the inquiry committee instituted by the university to inquire into the alleged

charges. The authority sent a letter under Ref.Nos. DU/RG/H.01.05/16/1540, dated 05.07.2016 and DU/RG/H.01.05/16/1541, dated 05.07.2016

sending her copy of the report of the Inquiry Committee asking her to submit her reply as to why the report submitted by the Inquiry Committee asking

her to submit her reply as to why the report submitted by the Inquiry Committee shall not be accepted by the University authority.

The 331st Meeting of the Executive Council held on 27 July, 2016 directed to submit the responses to the charges brought against her by the Inquiry

Committees as per letter referred to above within the extended deadline to which the reply was submitted on 05.08.2016 and 18.08.2016. Accordingly,

the replies furnished by Smt. Phukan have already been sent to the members of the Council for perusal and necessary action vide No.

DU/RG/R.02.03/16/1754, dated 06.09.2016.â€​

On the basis of the Resolution No.14 of the 332nd meeting of the Executive Council dated 24.10.2016, the order dated 24.10.2016 was passed by

the Registrar of the Dibrugarh University by which the penalty of removal from service was imposed on the petitioner. It is also seen that the said

order was passed under Article 32(vi)(h) of the Ordinance of 2000. The resolution No.14 of the 332nd of the Executive Council dated 24.10.2016 and

the order of the Registrar also dated 24.10.2016 have been assailed in this writ petition.

Mr. S.S. Dey, learned senior counsel by referring to the provision of Ordinance of 2000 submits that Article 32 thereof provides the procedure for

conducting a disciplinary proceeding in respect of the employees of the Dibrugarh University, and that the proviso to Article 32(vi) provides that in a

case for imposition of any of the penalties mentioned in Sub-Clauses (g), (h) and (i), the employee shall be given not less than three weeks time to

show cause against the proposed penalty. But the notice dated 05.07.2016 of the Registrar Dibrugarh University does not include an opportunity to the

petitioner to show-cause against the proposed penalty required under the proviso to Article 32(vi). The further submission of Mr. Dey, learned senior

counsel by referring to the decision of the Hon’ble Supreme Court in Managing Director, ECIL, Hydrabad and Ors., -vs- B. Karunakar and Ors.,

reported in (1993) 4 SCC 727 in paragraph-26 and 28 is that the disciplinary authority is required to consider, amongst others, the representation of the

employee against the enquiry report, but the record produced reveals that the disciplinary authority of the Dibrugarh University had not given a due

consideration to the issues raised by the petitioner in her reply/representation against the enquiry report.

Although according to Mr. S.S. Dey, learned senior counsel, several other grounds were available, but for the purpose of this writ petition, the

aforesaid two grounds alone are urged upon. Mr. Dey makes a further submission by relying upon paragraph-31 of the judgment of Hon’ble

Supreme Court rendered in Punjab National Bank and Ors., -vs- K.K. Verma reported in (2010) 13 SCC 494 that in the event a Regulation is in place

for conducting a disciplinary proceeding, such Regulations are required to be followed in letter as well as in spirit. Accordingly, it is the submission that

the proviso to Article 32(vi) of the Ordinance of 2000 having specifically provided for an opportunity to the delinquent to reply against the proposed

penalty, such procedure is also mandatorily required to be followed.

Mr. N.C. Das, learned senior counsel for the respondent Dibrugarh University on the other hand also relies upon paragraph-28 of B.

Karunakar’s case and submits that after the 42nd amendment of the Constitution, the delinquent is only entitled to an opportunity to reply against

the finding of the enquiry report and a further opportunity to show cause against the proposed penalty is no longer available. In order to appreciate the

rival submission, it would be apposite to examine the proviso to Article 32(vi) of the Ordinance of 2000.

The petitioner having been imposed the penalty of removal from service, where such punishment is provided in Article 32(vi) (h), prima facie, the

proviso to Article 32(vi) is also applicable. As the proviso requires the employee to be given an opportunity to show-cause against the proposed

penalty, it has to be construed that the said proviso makes it incumbent on the respondent authorities to give the delinquent a show-cause against the

proposed penalty of removal from service. When the aforesaid aspect is given a factual consideration, it is noticed that apart from the show-notice of

05.07.2016, no other show-cause notice was issued by the respondent authorities before imposing the order of penalty of removal from service, where

even the said show-cause notice also does not require the petitioner to give her reply against any proposed penalty of removal from service. All that

the said show-cause notice requires is that the petitioner give a reply to the findings of the enquiry report. On a perusal of the enquiry report also it is

revealed that there is no such indication in the enquiry report about any proposed penalty of removal from service. Therefore by affording the

petitioner an opportunity to give a reply to the enquiry report also does not give an indication that the petitioner was given an opportunity to reply

against the proposed penalty of removal from service. Accordingly, this Court is of the considered view that the proviso to Article 32(vi) of the

Ordinance of 2000 had not been followed by the authorities in the instant case.

On the submission of Mr. N.C. Das, learned senior counsel that after the 42nd amendment of the Constitution of India the requirement of giving an

opportunity to show-cause against the proviso penalty had been taken away, it would be necessary for this Court to examine the provision to Article

311 of the Constitution of India and also as to whether the said proviso is applicable in the present case. It is an admitted position of the parties

including the respondent Dibrugarh University that the Dibrugarh University is a statutory authority under the Dibrugarh University Act 1965 and

therefore, for all purpose, the status of the Dibrugarh University is that of a statutory authority created under a statute.

In order to examine whether the post of University Engineer in the Dibrugarh University is a civil post as contemplated in Article 311 of the

Constitution of India, reference is made to the pronouncement of the Hon’ble Supreme Court rendered in S.L. Agarwal â€"vs-General Manager

Hindustan Steel Ltd. reported in (1970) 1 SCC 177, wherein, in paragraph-10, it has been held that the expression civil post under the Union or the

State means that the civil post must be in the control of the State and that it must be open to the State to abolish the post or regulate the condition of

service. By applying the aforesaid principle, when the post of the University Engineer in the Dibrugarh University is examined, it is an admitted

position of the University that the post of University Engineer can neither be regulated nor be abolished on its own by the State .

In such view of the matter, it cannot be accepted that the post of University Engineer under the Dibrugarh University is a civil post under the

State. The question accordingly would be as to whether the 42nd amendment of the Constitution of India in respect of Article 311 would also have the

effect that the requirement of a show-cause notice against the proposed penalty had been done away in case of Dibrugarh University also, in spite of

the fact that the Ordinance of 2000 continues to regulate the service condition of the employees. For an effective answer reference is made to the

decision of the Hon’ble Supreme Court rendered in Punjab National Bank and Ors. (supra) wherein, the Hon’ble Supreme Court had held that

the Regulations are required to be followed in letter as well as in spirit.

In view of the aforesaid propositions of law as indicated above, this Court is of the view that as long as the Ordinance of 2000 remains in force,

the respondent Dibrugarh University is bound to follow the procedure prescribed therein and no deviation thereof can be made by taking recourse to

the 42nd amendment of the Constitution of India.

Mr. N.C. Das, learned senior counsel in order to substantiate his proposition that after the 42nd amendment of the Constitution of India, the

requirement of giving a show-cause notice against the proposed penalty is no longer applicable relies upon a decision of the Division Bench of this

Court rendered in Jamuna Gogoi Phukan â€"vs- Gauhati High Court and Ors., reported in (2017) 4 GLT 868. In paragraph-28 and 29 of the said

Judgment, the Division Bench of this Court had held that the proviso to Article 311 of the Constitution of India as it stands today after the changes

brought about by the 42nd amendment of Constitution of India, does not any further require the disciplinary authority to issue a show-cause notice

against the proposed penalty. It is noticed that in the said case, the disciplinary proceeding was conducted under Rule 9 of the Assam Service

(Discipline & Appeal) Rules, 1964 and under the said Rule, there is no statutory requirement of issuing a show-cause notice against the proposed

penalty. But in the instant case, the provision of the Statutory Rule in force are different inasmuch, the Ordinance of 2000 of the Dibrugarh University

still persists with the requirement of issuing a show-cause notice against the proposed penalty. In view of the said difference in the structure of the

relevant statutory rules that are in force, the decision of the Division Bench in Jamuna Gogoi Phukan case would not be applicable as such in the

present.

In the circumstance, the further question that arises is in the event, the Statutory Rules provides for the requirement of a show-cause notice

against the proposed penalty, whether the Statutory Rules would prevail over the proviso to Article 311 of the Constitution of India whose amendment

after the 42nd amendment has taken away the requirement of such notice.

Mr. N.C. Das, learned senior counsel refers to a decision of this Court dated 09.02.2015 in WP(C) No.1750/2005 to substantiate that in spite of

the proviso to Article 32(vi), the show-cause notice against the proposed penalty is not required. The said Judgment is inapplicable for the present

case, inasmuch as, in the said Judgment in paragraph-17, the Court has taken the note that in the said case, a show-cause notice was infact served on

the delinquent on the question of imposing of the proposed penalty.

In a plethora of decisions, it has been held by the Hon’ble Supreme Court that the constitutional protection offered under Clause 1 and 2 of

Article 311, cannot be taken away by any legislation which is short of an amendment of the Constitution itself. The said proposition by itself is an

indication that the protection provided under Article 311 of the Constitution of India, is the minimum protection that an employee is entitled in the event

a penalty is proposed to be imposed. Accordingly, it cannot be construed that any procedure which is more stringent or gives some further protection

to the delinquent employee would be ultra vires to the Constitution of India. The said factor coupled with the proposition of the Hon’ble Supreme

Court that the statutory regulation providing for the procedure of conducting the disciplinary proceeding has to be followed letter and spirit, this Court

is of the view that the respondent Dibrugarh University by taking recourse to the 42nd amendment to the Constitution of India cannot do away with

the statutory requirement of the proviso to Article 32(vi) of the Ordinance of 2000, as long as the provision exists in the statute.

In S.K. Saha â€"vs- Prem Prakash Agarwal reported in (1994) 1 SCC Page 431, it has been accepted that the provision of Article 311 of the

Constitution of India is a constitutional protection given to the employees holding a civil post against any dismissal, removal or reduction in rank without

following the procedure of enquiry by giving a reasonable opportunity of being heard. Accordingly, any provision of law either statutory or otherwise

must conform itself to such protection given under Article 311 and any such provision of law which would be repugnant or inconsistent with the

provision of Article 311 would be void. In this respect, reference is made to the law laid down by the Privy Council in North-West Frontier Province

â€"vs- Suraj Narain Anand reported in AIR 1949 PC 112 wherein, it has been followed as under:-“…… The principle of repugnancy which was

contained in s. 84 of the Act of 1919 is preserved in s. 293 of the Act of 1935, and the intention of that section is that there shall be no provision in any

Indian Act repugnant to any provision of the Act of 1935. The amendment rule of 1934 would still be repugnant to s. 240 sub-s 2, as it was repugnant

to s. 96b, sub-s I of the Act of 1919, and would be invalid to the extent of the repugnancy†Further, the Hon’ble Supreme Court in Moti Ram

Deka and Ors., -vs- General Manager North East Frontier Railway and Ors., reported in (1964) SC 600 in paragraph-86 has held as under:-

“…… It has to be noticed that both Articles 309 and 310 are subject to Article 311. In other words, if any rule is made under Article 309 as

regards the conditions of service of a government servant in the matter of his dismissal or removal or reduction in rank it has to comply with the

requirements of Article 311……. It is easy to see that if every termination of service amounted to dismissal or removal the resultant position will be

that every officer would have the right to be heard before any action could be taken under Article 310…..â€​

The expression “repugnant†as defined in Black’s Law dictionary is an inconsistency and contradiction between two or more parts of a

legal instrument. Accordingly, the aforesaid provision of law as regards Article 311 of the Constitution of India has to be interpreted in a manner that

any other statutory law providing for a procedure for dismissal, removal or reduction in rank of an employee has to be consistent with the provisions of

Article 311 meaning thereby that all such protections available under Article 311 also mandatorily have to be included in such procedural law.

Accordingly, if a relevant provision of law providing for such procedure includes all such protections provided under Article 311, it cannot be said that

such procedural law is repugnant, inconsistent or in contradiction to the provision of Article 311. Similarly, if the prescribed procedural law, while

providing for all such protections as required under Article 311 also provides for some further protection, the same by itself cannot be said to be

repugnant, inconsistent or in-contradiction to the provision of Article 311. It is more so in view of the aspect that the purport of Article 311 is to protect

an employee from being dismissed, removed or reduced in rank in service without following the required procedure.

In such view of the matter, as the show-cause notice against the proposed penalty was not issued to the petitioner before passing the order of

removal from service, this Court is of the view that the procedure adopted by the respondent authorities is in deviation of the statutory provision of the

Ordinance of 2000 and as such the same stands vitiated.

Further, it is also the position of law that when the delinquent employee gives a reply to the enquiry report, the said reply is to be given a due

consideration by the disciplinary authority before passing any order of penalty against the delinquent. In the instant case, it is noticed that although the

reply given by the petitioner against the show cause notice was shown to have been sent to the members of the Executive Council, but apart from the

bland statement in the resolution No.14 that the reply given by the petitioner does not disprove the charges established in the enquiry, no other material

has been brought on record to indicate that the disciplinary authority had given a due consideration to the said reply. From the said point of view also, a

procedural aberration is found in the method adopted by the respondent authorities in arriving at the order of removal from service.

For both the reasons as indicated above, the order of removal from service dated 24.10.2016 as well as the resolution No.14 of the Executive

Council of the Dibrugarh University in its 332nd meeting held on 24.10.2016 are set aside. As the interference is made on a technical aspect that the

required procedure has not been followed, it is provided that interest of justice would be met if the respondent Dibruarh University now proceeds

against the petitioner from the stage where deviation from the established procedure had taken place. Accordingly, the Dibrugarh University shall give

a consideration to the reply of the petitioner submitted against the show cause notice dated 05.07.2016 and arrive at a reasoned conclusion as to why

the reply should not be accepted and thereafter proceed with the requirement of the proviso to Article 32(vi) of the Ordinance of 2000. It is clarified

that the implication of the order of removal being set aside is that the petitioner stands reinstated in service, but thereafter the authorities can proceed

against the petitioner as per law.