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Judgment
Ramesh Ranganathan, CJ
Heard Sri Rakesh Thapliyal, learned counsel for the petitioner and Sri Bhupesh Kandpal, learned counsel for respondent nos. 3 & 4.
The petitioner herein invoked the jurisdiction of this Court seeking a writ of certiorari to declare exercise of power by the third respondent as illegal, arbitrary and in contravention of the Memorandum of Understanding dated 10.05.2011; a writ of certiorari to quash the decision of the Board of Governors in its meeting dated 17.03.2018, approving disciplinary action against the petitioner, as well as the decision taken in the subsequent meeting dated 21.07.2018; a writ of certiorari to quash the impugned charge-sheet dated 23.04.2018, and the inquiry report dated 11.09.2018; a writ of certiorari to quash the order of dismissal dated 03.10.2018, and the consequential order dated 04.10.2018, issued by the third respondent; and a writ of mandamus directing the respondents to reinstate the petitioner into service with all consequential benefits, including arrears of salary during the period of suspension.
Facts, to the limited extent necessary, are that a Memorandum of Understanding was entered into between the Tehri Hydro Development Corporation, (a company incorporated under the Companies Act) and the Uttarakhand Technical University. An advertisement was issued by the Uttarakhand Technical University on 11.06.2012, for appointment of regular teaching staff in different faculties. The petitioner claims to have applied, to have been interviewed, and thereafter appointed as an Associate Professor in Mathematics.
It is the petitioner's case that, pursuant to the appointment order issued by the Vice Chancellor (as the Chairman of the Faculty Appointment Committee), he has been working as an Associate Professor ever since. The Director of the Institute passed an order on 19.08.2014 informing the petitioner that the review committee had not recommended his name for renewal of the contract as an Associate Professor; and he should submit a no due certificate for release of his last salary. The Vice Chancellor issued a corrigendum dated 14.08.2012 to the effect that the various positions, to which appointments were made in the year 2002, were temporary and would continue only till the Government of Uttarakhand created posts.
WPSB Nos. 193 of 2014 and 294 of 2014 were filed questioning the validity of the said corrigendum dated 14.08.2012. Both the writ petitions (one filed by the Association and the other filed by the petitioner) were disposed of by order dated 01.12.2015; and the corrigendum dated 14.08.2012 was set-aside, as also the condition that the petitioner should submit a Personal Based Appraisal System Form for extension of his services.
In its order in WPSB Nos. 193 of 2014 and 294 of 2014 dated 01.12.2015, a Division Bench of this Court observed that the services of the petitioners stood regularized, and their posts stood "considered and created" in the self financing mode; the petitioners were not ad-hoc employees; they were not working on a contract basis; they were entitled to hold their posts, even dehors the creation of these posts by the State Government; and the petitioner held their posts which had been created under the self financing mode.
The Division Bench further observed that the appropriate authority may, however, evaluate their performance, from time to time, as per UGC Regulations, and the AICTE norms, to maintain the standard of education as is done in other similarly situated institutions; the petitioners would not be permitted to sit idle; despite their regularization, their work performance could be evaluated, and they could be removed from their posts in case they did not perform; action could be taken against them in accordance with law; the AICTE guidelines were to be followed to maintain standards of teaching in the constituent colleges run by the Uttarakhand Technical University which had engaged the petitioners, without financial liability of the State, from its own resources; it was open to the Government to create vacancies other than in the self financing mode; however, such Government Orders would not adversely affect regularization of the petitioners. While setting aside the corrigendum dated 14.08.2012, and the consequential orders, the Division Bench also set-aside the condition whereby the petitioners, who were regularized in their posts, were directed to submit their PBAS for extension of their tenure.
Two review applications were filed thereagainst, one by the Institute, and the other by the University, seeking review of the order passed by the Division Bench in WPSB No.193 of 2014 and WPSB No. 294 of 2014 dated 01.12.2015. Both these review applications were dismissed by order dated 20.07.2016. In the said order dated 20.07.2016, the Division Bench opined that, by means of the review applications, the review applicants were again agitating the point, that there was no substantive post in the Institute, knowing fully well that this issue had been dealt with, in detail, while deciding the writ petitions; the issue of the Memorandum of Understanding had already been discussed by the Division Bench in its judgment under review; no useful purpose would be served in challenging the same again and again before the Court; it was a futile exercise on the part of the review applicants to justify their order time and again; the Division Bench had adjudicated the issues which were pleaded by the parties; no new issue had been pressed, nor did any arise necessitating review; review was available only on the limited ground of some mistake or error apparent on the face of record; there was no mistake or error apparent on the face of record which required review of the judgment and order dated 01.12.2015; the review applicants had again agitated those arguments, which had already been dealt with while rendering the decision in the writ petitions; and they had great difficulty in restraining themselves from imposing costs on the review-applicants.
Both the State Government and the Uttarakhand Technical University preferred SLPs before the Supreme Court (SLP (C) Diary No. 20348 of 2017 filed by the State of Uttarakhand and SLP No. 28110 of 2016 filed by the Uttarakhand Technical University), which were dismissed by orders dated 25.08.2017 and 283.07.2017, the former both on the grounds of delay and on merits, and the latter as withdrawn.
Pursuant to the order of the Division Bench in WPSB No. 193 of 2014 and WPSB No. 294 of 2014 dated 01.12.2015, the Director of the Institute informed the petitioner, vide proceedings dated 18.05.2017, that, with reference to the letter of the Vice Chancellor dated 01.05.2017, he was directed to convey that the petitioner's services had been regularized on the basis of the judgment of the High Court dated 01.12.2015; and he was being paid salary in the regular scale and the current rate (125%) of the DA.
As the review petitions, (MCC No. 182 of 2016 and MCC No. 201 of 2016) dated 20.07.2016, preferred against the order passed by the Division Bench in WPSB Nos. 193 of 2014 and 294 of 2014 dated 01.12.2015, were dismissed by order and the SLPs preferred by the University and the Institute were dismissed by the Supreme Court, the order of the Division Bench, in WPSB Nos. 193 and 294 of 2014 dated 01.12.2015, an order inter-parties which had attained finality, is binding on the parties thereto including the Institute.
A charge memo was issued to the petitioner on 12.03.2018, framing several charges, which included that he was not obeying the general instructions passed for the faculty and staff; he was disobeying the specific orders given by the authority; he was not performing his duties as a member/head of the physical verification committee, and was not obeying the orders of appointment of a mentor for the students as per the AICTE/NPIU mandate; he was not replying to the show cause notice, but was rather asking questions, and sending replies to the Vice Chancellor in the place of the Competent Authority i.e. the Director; and he was misbehaving with the Deputy Controller of exams, and was failing to take the allotted lectures. Several other charges, relating to indiscipline, were also levelled against the petitioner. The petitioner submitted his reply thereto, vide letter dated 03.04.2018, dealing with the allegations levelled against him; and referring to the Division Bench judgment in WPSB Nos. 193 of 2014 and 294 of 2014 dated 01.12.2015. He requested the Director to forward the letter to the Vice Chancellor, and, requested the Vice Chancellor to look into the matter so that the whole matter could be enquired into.
A notice was issued to the petitioner, by the Director of the Institute on 21.05.2018, informing him that it had come to the knowledge of the authorities that he was not issued the first appointment letter from the University. The petitioner was requested to submit proof that the Uttarakhand Technical University had issued him an appointment letter in the year 2012, with a Xerox copy of the dispatch register, failing which the Institute would take a decision one sided. Thereafter, vide letter dated 25.07.2018, the Director of the Institute informed the petitioner that the Uttarakhand Technical University had communicated that the petitioner's initial appointment order, vide letter dated 11.06.2012, had not been issued by the University. The petitioner was asked to show cause as to why action should not be taken on the new facts that the initial appointment had not been issued by the University, and he had joined the Institute with the same letter. The petitioner submitted his reply, to the notice dated 21.05.2018, by his letter dated 24.05.2018, informing the authorities that the records were with them, and he could not be called upon to furnish the information.
Sri Rakesh Thapliyal, learned counsel for the petitioner, would draw our attention to the copy of the appointment letter, enclosed along with the writ petition, dated 11.06.2012, which he claims was issued by the Vice Chancellor appointing the petitioner as an Associate Professor in Mathematics. Since all these aspects were examined by the Division Bench, in WPSB Nos. 193 of 2014 and 294 of 2014 dated 01.12.2015, it would be wholly inappropriate for us to now re-open the issue, and examine whether or not the petitioner's initial appointment was valid.
An Inquiry Committee was constituted, by the Director of the Institute, which, in its meeting held on 09.09.2018, recorded a finding that the petitioner had refused to be present before it. After scrutinizing the records relating to the petitioner, and interacting with the other staff of the Institute orally, the Inquiry Committee recorded a finding that the petitioner's behavior and attitude towards the Institute were wholly improper. It, then, discussed the acts of indiscipline and disobedience of the petitioner in Part-I and Part-II of its report.
Despite the fact that the Division Bench had held that the petitioner's services had been regularized, and he was a regular employee of the Institute, the Inquiry Committee held that the selection process, whereby the petitioner was initially appointed, was faulty in nature starting from the advertisement, to the selection, as regarding the eligibility criteria; and the petitioner was not properly appointed. In part III, the Inquiry Committee noted that, during his suspension, the petitioner's conduct also amounted to indiscipline and disobedience; and he had challenged the authority of the Board of Governor and the Institute.
In its concluding remarks and recommendations, the two member Inquiry Committee concluded that the petitioner was highly indisciplined and disobedient; his conduct was beyond the permissible range in any Institute to maintain the system; his appointment was made by the authority without confirmation by the competent authority, and the post was not created by the State Government; his basic appointment was illegal, which had also been justified by the Registrar of the University that no such appointment letter was issued by the University; this made his initial appointment as illegal in the eyes of law; the petitioner was not qualified for the post of Associate Professor at the time of his selection; he was appointed by the authority in an illegal post not created by the State Government; the post was against the then AICTE norms; and the petitioner was challenging all the authorities in the hierarchy of the Institute including the Board of Governor and, in turn, the State Government. The committee, thereafter, opined that, since the petitioner's basic appointment was illegal in the eye of law, and in addition to other parameters mentioned in the report; appropriate strict action, including termination/dismissal of his services, be done by the competent authority to maintain the sanctity of the Institute.
The Director of the Institute furnished a copy of the inquiry report to the petitioner, vide letter dated 11.09.2018, and called upon him to submit his reply thereto within one week. The petitioner, however, chose not even to reply to the findings in the inquiry report.
While the Inquiry Committee has, no doubt, dealt with the act of indiscipline of the petitioner, and has recorded adverse findings against him, it also examined the initial appointment of the petitioner, and held it to be illegal. On the basis of such an inquiry report, the impugned order was passed by the Director of the Institute informing the petitioner that the Disciplinary Authority/ Board of Governor had, on the basis of the inquiry report of the Inquiry Committee, approved dismissal of the petitioner's services from the Institute, on the basis of charges framed against him, which were found proved. The petitioner was informed that his services were dismissed with immediate effect, and he was no more an employee of the Institute.
While the attitude of the petitioner is, no doubt, intransigent, and he appears to have chosen not to accept the authority of the Director, in initiating disciplinary proceedings against him, the action of the Director of the Institute is no better, for the impugned order does not even record reasons why the severe punishment, of dismissal from service, was being imposed on the petitioner.
Sri Bhupesh Kandpal, learned counsel for the Institute, would submit that, since the Disciplinary Authority had accepted the findings of the Inquiry Committee, whose report constituted the basis for imposition of punishment, it was not necessary for them to assign elaborate reasons. The inquiry report, as noted hereinabove, also dealt with the question of the petitioner's initial appointment being illegal, though a Division Bench of this Court, in its order in WPSB Nos. 193 of 2014 and 294 of 2014 dated 01.12.2015, had held that the appointment of the petitioner, in the post of Associate Professor of the Institute, was regular; he was not working on a contract basis; and he was entitled to hold the post, even dehors the creation of the post by the State Government.
As noted hereinabove, the order of the Division Bench has attained finality, since the SLP preferred thereagainst was dismissed by the Supreme Court, and the applications filed seeking review of the said order were also dismissed. It was, therefore, not open to the Inquiry Committee to again examine the issue regarding the petitioner's initial appointment, since the judgment of the Division Bench (a judgment inter-parties which had attained finality) is binding both on the University and on the Institute which were parties to the said judgment. The Inquiry Committee examined both the acts of indiscipline on the part of the petitioner, as also the illegality of his initial appointment as an Associate Professor, though neither the Director of the Institute, nor the Inquiry Committee, could have re-opened the issue regarding the validity of the petitioner's initial appointment, in view of the Division Bench judgment in WPSB Nos. 193 of 2014 and 294 of 2014 dated 01.12.2015.
The findings recorded by the Inquiry Committee, regarding the petitioner's initial appointment being illegal, also weighed with the Director of the Institute, and the Board of Governor (Disciplinary Authority), in imposing on him the punishment of dismissal from service. As the order of punishment, of dismissal from service, is also based on the alleged illegal initial appointment of the petitioner which, in view of the order of the Division Bench of this Court, could not have been gone into either by the Director of the Institute or by the Inquiry Committee, the impugned order of punishment, which is based on the findings of the Inquiry Committee, is illegal. The order of punishment must be, and is accordingly, set-aside.
That does not, however, mean that no action can be taken against the petitioner for his acts of indiscipline, which the Inquiry Committee has held to have been established. Sri Rakesh Thapliyal, learned counsel for the petitioner, would point out certain discrepancies in the inquiry report, and would contend that the inquiry report, which refers to the interaction of the two member committee with several other officers, does not even refer to who those officers were.
We see no reason, however, to undertake an in-depth examination of these aspects, in proceedings under Article 226 of the Constitution of India, more so as the petitioner has chosen not even to submit his reply to the findings recorded in the inquiry report. While we were, initially, inclined to direct the Disciplinary Authority to consider the findings of the Inquiry Committee, dehorse Part II thereof which deals with the petitioner's initial appointment being illegal, and take a decision afresh, Sri Rakesh Thapliyal, learned counsel for the petitioner, would seek one more opportunity for the petitioner to submit his reply/objections to the inquiry report.
As the petitioner's career is in jeopardy, and any punishment imposed on him pursuant to the inquiry report, would undoubtedly have serious repercussions on him, we consider it appropriate to permit the petitioner to file his objections to the inquiry report within three weeks from today. On receipt of the objections of the petitioner to the inquiry report, the Board of Governor of the Institute shall consider the same, and pass a reasoned order in accordance with law, including, if need be, on the nature of punishment to be imposed on the petitioner.
The petitioner shall be reinstated into service forthwith. However, his entitlement for back wages for the period he was kept out of service, shall be subject to the outcome of the disciplinary proceedings. Suffice it to observe that the Disciplinary Authority (the Board of Governor) shall pass a reasoned order, in accordance with law, within two months from the date of receipt of the petitioner's objections to the inquiry report and, in any event, not later than three months from today.
The Writ Petition is, accordingly, disposed of. No costs.