Dr. Kandarpa Das vs Chancellor And 5 Ors

1) Heard Mr. N. Dutta, learned senior counsel (since deceased) and Mr. D. Das, learned senior counsel, assisted by Mr. S. Deka, learned counsel for

the petitioner. Also heard Mr. D. Saikia, learned Advocate General for the State of Assam, assisted by Mr. B. Choudhury, learned counsel for the

respondent nos. 1 to 4 and 6 and also heard Mr. P.J. Phukan, learned counsel for respondent no. 5.

2) Challenging the legality and validity of (i) the order dated 13.08.2021 (Annexure-4), by which the petitioner, who was the Vice Chancellor of

Krishna Kanta Handiqui State Open University (KKHSOU for short), was suspended, and (ii) show-cause notice dated 16.08.2021 (Annexure-5),

both issued by the Governor as Chancellor of KKHSOU, the present writ petition has been filed under Article 226 of the Constitution of India.

Brief background facts as projected in the writ petition:

3) Bereft of unnecessary details, the case of the petitioner in brief is that while the petitioner was working as a Professor in the Department of

Foreign Language in Gauhati University, the petitioner was appointed as Director of Institute of Distance and Open Learning, Gauhati University

(GUIODL for short), for two 5 (five) year term from 19.08.2006 to 2011 and from year 2013 to 31.01.2016. While working as Professor in the

Department of Foreign Language in Gauhati University, the petitioner was selected and appointed as the Vice Chancellor of the KKHSOU for a three

year term vide notification dated 06.03.2020, issued by the Commissioner & Secretary to the Governor of Assam. On 11.03.2020, the petitioner was

granted extraordinary leave by the Gauhati University and after obtaining lien from Gauhati University, the petitioner had joined in the post of Vice

Chancellor of KKHSOU on the same day.

4) At the point of time when the petitioner was then working as Professor in the Department of Foreign Language in Gauhati University, the

Comptroller and Auditor General of India (CAG for short) had submitted a report on Social, General and Economic (Non-PSUs) Sector for the year

ending 31.03.2018, which was placed before the State Legislature. Amongst others, it was contained in the CAG report that during the period from

2010 to 2017, the GUIDOL had offered 21 courses, which were not approved by the statutory Council and course fees of Rs.39.06 Crore had been

collected from the students. The State Government had forwarded the said report to the Gauhati University. Thereafter, on 09.12.2019, the Executive

Council of Gauhati University had constituted One Man Inquiry Commission headed by Hon’ble Mr. Justice Aftab Hussain Saikia, former Chief

Justice of High Court of Sikkim and High Court of Jammu & Kashmir to inquire into the anomalies indicated in the CAG report in respect of

GUIDOL. On 28.09.2020, the said Inquiry Commission had submitted its report. Thereafter, by serving a charge-sheet dated 22.06.2021 on the

petitioner, a Departmental Proceeding was initiated by Gauhati University against the petitioner under Rule 11 of the Gauhati University Teacher’s

Conduct Rules, 1984 read with Rule 7 and 9 of the Assam Services (Discipline and Appeal) Rules, 1964.

5) During the pendency of the Departmental Proceeding against the petitioner in respect of GUIDOL, vide order dated 13.08.2021 (Annexure-4)

issued by the Secretary to the Governor of Assam (respondent no.6), the petitioner was placed under suspension with immediate effect in exercise of

power under Section 8(1) of the KKHSOU Act, 2005 read with Section 18 of the Assam General Clauses Act, 1915 and that until further orders and

another Professor of the Department of Management of Gauhati University was allowed to function as the Vice Chancellor of the KKHSOU.

Thereafter, the respondent no. 6 had issued the impugned notice dated 16.08.2021 (Annexure-5) to the petitioner, directing him to show cause within

15 (fifteen) days as to why appropriate action under law should not be inflicted upon the petitioner. At this stage, on 18.08.2021, the present writ

petition was filed.

Gist of submissions of the learned senior counsel for the petitioner:

6) The learned senior counsel for the petitioner has submitted that the said impugned order dated 13.08.2021 does not indicate that it was issued

pending drawal of any Departmental Proceeding. It is also submitted that the KKHSOU Act, 2005 and Rules and Ordinances framed thereunder does

not prescribe the manner for suspending the Vice Chancellor, therefore, the respondent nos. 1 and 6 have wrongly taken recourse to the provisions of

Section 18 of the Assam General Clauses Act, 1915. It has also been submitted that the order of suspension dated 13.08.2021 was made on the basis

of opinion formed by the said authority and as the suspension was not made pending any enquiry, the order of suspension was a measure of

punishment, for which is not sustainable. It is also submitted that as no order was passed for granting subsistence allowance, the impugned order of

suspension was punitive. It is further submitted that the Executive Council was the appointing authority of the petitioner and therefore, the said

authority would alone be the Disciplinary Authority. Thus, it is submitted that the order of suspension was void ab initio and without jurisdiction. It is

also submitted that it is apparent from the impugned order of suspension and show- cause notice that the Governor has already formed an opinion, as

such, the show cause notice was perfunctory and was vitiated by existence of a pre-determined mind and therefore, liable to be interfered with.

7) It has also been submitted that the show-cause notice is based on certain allegations of misconduct, which do not relate to KKHSOU, but the

allegations pertain to another independent institution, i.e. GUIDOL, where the petitioner was the Director. It has been stated that inquiry as

contemplated against the petitioner is not provided for in the relevant Act, Rules and University Statute and therefore, the provisions of Section 18 of

the Assam General Clauses Act, 1915 has been illegally used to perpetrate injustice. It has also been submitted that petitioner had made untiring effort

to have the unrecognized courses approved. It is further submitted that there was an inadvertent or bona fide mistake in continuing with the

unapproved course. It is further submitted that there cannot be a situation where the Govt. servant does not have lien and therefore, once the lien in

respect of the petitioner on the post of Professor in Department of Foreign Languages in Gauhati University got discharged, the petitioner is a

employee of KKHSOU for all intents and purpose and therefore, if the authorities decide to proceeding against the petitioner, he must be subjected to

usual departmental proceeding. It is also submitted that the suspension order was stigmatic and is liable to be set aside. It is also submitted that 3

(three) persons were allegedly indicted by One Man Inquiry Commission, namely, Hon’ble Mr. Justice Aftab Hussain Saikia Commission, but the

authorities have singled out only the petitioner for punishment.

8) In support of his submissions, the learned senior counsel for the petitioner has placed reliance on the case of State of Orissa v. Binapani Dei [State

of Orissa v. Binapani Dei, AIR 1962 SC 1269], and V.P. Gindroniya v. State of M.P.[ V.P. Gindroniya v. State of M.P. & Anr., (1970) 1 SCC 362]

Submissions by learned Advocate General:

9) Per contra, the learned Advocate General has in-extensio relied upon the Report dated 28.09.2020 submitted by the One Man Inquiry Commission.

It is submitted that at the relevant point of time when the petitioner was appointed as Vice Chancellor of KKHSOU, there was no finding against the

petitioner. However, in course of time CAG report for 2010-17 was placed before the Government. It is also submitted that as per the finding at para-

148 of the One Man Inquiry Commission Report dated 28.09.2020, Prof. P.J. Das, who worked as Director i/c, GUIDOL from 01.02.2016 to

31.11.2017, for the first time, brought the fact of running of unapproved courses by GUIDOL to the Gauhati University Administration. It is submitted

that as per the said One Man Inquiry Commission Report dated 28.09.2020, the unapproved courses continued with full knowledge and support of

Gauhati University authorities working during the relevant period. It is also submitted that though the CAG had found that 21 unapproved and

unauthorised courses was being conducted by GUIDOL, but the One Man Inquiry Commission had returned a finding that in fact the petitioner was

instrumental in conducting 23 unauthorised and unapproved courses, which has resulted in as many as 73,912 students getting invalid degrees/

certificates. It is submitted that the projection that only 1 (one) student had complained is of no consequence because perhaps rest of the students do

not want their Degree/ certificates to be nullified. It has been submitted that from document marked by the One Man Inquiry Commission as Ext.C-

10, it is certain that the petitioner had full knowledge that he was conducting courses which were unapproved. It is submitted that as per the said

report, the DEC/UGC were unaware that courses were unapproved. It is submitted that from letters dated 30.03.2012, 21.01.2014 and 12.09.2016

(contained in Report of the One Man Inquiry Commission), the DEC/UGC had given its approval to run 8 programmes only as mentioned in the letter

dated 04.08.2010 and that time and again the DEC/UGC had made it clear to GUIDOL that only the approved programmes could be offered by

GUIDOL through ODL (open distance learning) mode and that the petitioner should not have continued the unapproved course simply on the basis of

his letters dated 02.09.2010 and 27.04.2012 to DEC in anticipation of approval.

10) It is also submitted that in his capacity as the Chancellor of KKHSOU, it is the Governor’s prerogative to suspend the petitioner by taking

recourse to Section 18 of the Assam General Clauses Act, 1915. It is also submitted that although the Governor had the power to dismiss, but by

issuing the show-cause notice, principles of natural justice has been complied with. It is submitted that the said power was invoked for greater interest

of the KKHSOU and its students. It is submitted that the Report by the One Man Inquiry Commission contains admission by the petitioner upon

question being put to him as to whether he knows about unapproved courses, to which the petitioner had replied as ‘yes’. Thus, it is submitted

that at this stage, he is not pressing the allegation of misconduct by collecting course fees through separate bank account and incurring huge expenses,

for which law would take its own course. It is submitted that the Report of Hon’ble Mr. Justice Aftab Hussain Saikia Inquiry Commission has not

been challenged though its contents is adverse to the petitioner. Moreover, it is submitted that it is legally permissible for the employer to take notice of

misconduct of its employees in any other institution or in course of previous service or of any past conduct of its employees. Countering the

submissions made by the learned senior counsel for the petitioner, the learned Advocate General has submitted that out of the other employees of

GUIDOL indicted in the Report of the One Man Inquiry Committee, only the petitioner is in service of the KKHSOU and therefore, it is not

permissible for the KKHSOU to contemplate any action against non-employees.

11) It has been submitted by the learned Advocate General as per his instructions, the service of the petitioner has been terminated in GUIDOL after

conclusion of disciplinary enquiry. It has also been submitted that in the departmental proceeding instituted against the petitioner in KKHSOU, after

examination and cross-examination of witnesses, the said proceeding is almost over. However, owing to interim directions given by this Court, the

proceedings could not be culminated.

12) In support of his statement, the learned Advocate General has placed reliance on the case of S. Govinda Menon v. Union of IndiaS[. Govinda

Menon v. Union of India, AIR 1967 SC 1274: 1967 STPL 286],. Bool Chand v. Kurukshetra University [Bool Chand v. Kurukshetra University, AIR 1968 SC 292],

Acharya Prabhakar Mishra v. Chancellor & Anr.[ Acharya Prabhakar Mishra v. Chancellor & Anr., AIR 1972 Pat 393]., K. Kandaswamy v. Union of India

& Anr.[ K. Kandaswamy v. Union of India & Anr., (1995) 6 SCC 162]., M.M. Malhotra v. Union of India[M.M. Malhotra v. Union of India, (2005) 8 SCC 351]. ,

Bhikhubhai Vithalbhai Patel v. State of Gujarat & Anr.[ Bhikhubhai Vithalbhai Patel v. State of Gujarat & Anr., (2008) 4 SCC 144], Burdwan Central

Cooperative Bank v. Ashim Chatterjee[Burdwan Central Coopera(cid:56)ve Bank v. Ashim Cha(cid:57)erjee, (2012) 2 SCC 641], Union of India v. Ashok Kumar

Agarwal[Union of India v. Ashok Kumar Aggarwal (2013) 16 SCC 147.]; (ix) Prof. H. Maheshappa v. The Hon’ble Governor of Karnataka etc.[ Prof. H.

Maheshappa v. The Hon’ble Governor of Karnataka etc., (2016) 0 Supreme(Kar) 113].

Reply by the learned senior counsel for the petitioner:

13) In reply to the submissions made by the learned Advocate General, it has been submitted by the learned senior counsel for the petitioner that the

Report by the One Man Inquiry Committee was merely an inclusive opinion, which cannot be equated to a judicial decision. Therefore, there is no

necessity for the petitioner to challenge it. By referring to the entire report, it has been submitted that the Gauhati University authorities had candidly

accepted that the bona fide error of judgment was committed by the petitioner. Accordingly, by heavily relying on the ratio laid down in the case of

Union of India v. J. Ahmed[Union of India & Ors. v. J. Ahmed, (1979) 2 SCC 286], it is submitted that if there was an “error of judgmentâ€, there was

no misconduct and therefore, any disciplinary proceeding initiated against the petitioner is liable to be dropped. It is also submitted that in that view of

the matter, the case of Bool Chand iv, heavily relied upon by the learned Advocate General would have no application. In support of the contention

that the Govt. is not bound by the recommendations made by the Inquiry Commission is an indication that such recommendations are not sacrosanct,

the learned senior counsel for the purpose of showing the legal principles, petitioner has placed reliance on the cases of Noorul Huda Maqbool Ahmed

v. Ram Deo Tyagi & Ors.[ Noorul Huda Maqbool Ahmed v. Ram Deo Tyagi & Ors., 2011) 7 SCC 95],. and Kailash Gour v. State of Assam[Kailash Gour &

Ors. v. State of Assam, (2012) 2 SCC 34.]

14) It has been submitted that if the impugned order of suspension and show cause notice issued against the petitioner is not interfered with, it would

result at great injustice to the petitioner as he would be made to suffer the vice of “double jeopardyâ€. It is submitted that it would have the effect

of punishing the petitioner twice on the same set of allegations, all of which relates to GUIDOL and not relating to KKHSOU. In this regard, reliance

is placed on the case of Lt. Governor, Delhi & Ors. v. HC Narinder Singh[ Lt. Governor of Delhi & Ors. v. HC Narinder Singh, (2004) 13 SCC 343.].

15) Distinguishing the cases cited by the learned Advocate General, it is submitted that the petitioner was not disputing the power to suspend, but the

same was bad on facts and in law. However, it is submitted that in the case of Prof. H. Maheshappaxi, there was an allegation of financial irregularity

and that in the case of Ashok Kumar Aggarwalx, it was held that power to suspend should be exercised on strong suspicion, which was not

established from the report by the One Man Inquiry Commission, for which the said case would not help the respondents in any way. It has been

submitted that rather, paragraph 45 of the said case helps the petitioner because the suspension order and show cause notice are not based on factual

matrix, but based on erroneous reading and understanding of the Report by the One Man Inquiry Commission. The said paragraph is quoted below:-

“45. In State of U.P. v. Neeraj Chaubey, (2010) 10 SCC 320 and State of Orissa & Anr. v. Mamata Mohanty, (2011) 3 SCC 436, this

Court held that in case an order is bad in its inception, it cannot be sanctified at a subsequent stage. In Mamata Mohtanty, it was held:

“37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent

action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the

order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a

law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent

thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. [Vide Upen

Chandra Gogoi v. State of Assam, (1998) 3 SCC 381, Mangal Prasad Tamoli v. Narvadeshwar Mishra, (2005) 3 SCC 422; and Ritesh

Tewari v. State of U.P., (2010) 10 SCC 677]â€​.

16) It is further submitted that the cases of S. Govinda Menoniii, and Acharya Prabhakar Mishrav were not applicable under the distinguishing facts

because in this case there was no criminal intent, but there was a judgmental error in continuing with the unapproved courses. It is further submitted

that the Academic Council and the Executive Council of the Gauhati University were well aware that the courses were being conducted, which was

in anticipation of regularisation by the competent authorities of the DEC/UCG. It is also submitted that in the case of K. Kandaswamyvi, the

authorities had found that the said delinquent IPS officer had disproportionate assets, which is not so in the present case. It is also submitted that the

case of Bhikhubhai Vithalbhai Patelviii, relied upon by the learned Advocate General had no application in this case. It is submitted that in the said

case, it was laid down to the effect that “… opinion to be formed by the State Government cannot be on imaginary grounds, wishful thinking,

however, laudable that may be. Such a course is impermissible in law. The formation of the opinion, though subjective, must be based on the material

disclosing that a necessity had arisen to make substantial modifications in the draft development plan.†In the said context, it has been submitted that

in the present case, there was no cogent basis for the respondent nos. 1 and 6 to form his opinion.

Reasons and decision:

17) Considered the submissions made at the Bar and perused the writ petition, affidavit-in-opposition by the respondent nos. 1 and 6, affidavit-in-reply

filed by the petitioner, additional affidavit filed by the petitioner on 06.10.2021, affidavit-in-opposition filed by the respondent no. 5 and additional

affidavit filed by the petitioner on 30.11.2021.

18) Although a very lengthy submissions have been made from both sides, but in the considered opinion of the Court, it would prejudice either side if

merit of the allegations against the petitioner or merit of the defence of the petitioner is examined at this stage when the Disciplinary proceeding has

already been initiated and appears to be at the fag-end of inquiry. Therefore, the only two issues that can be examined at this stage are:-

i. whether the Governor of Assam had the power and authority to (a) suspend the petitioner in KKHSOU; and (b) issue show cause notice to

the petitioner; and

ii. whether the said impugned (a) order of suspension dated 13.08.2021; and (b) show-cause notice dated 16.08.2021 warrants any

interference from this Court.

19) At the outset, it must be stated that the Report dated 28.09.2020 by the One Man Inquiry Commission has not been assailed in this writ petition as

such the Court is not called upon to decide whether the said report was correct or not. Therefore, nothing contained in this order would constitute a

final opinion of the Court on the said Report.

20) By relying on the cases of Noorul Huda Maqbool AhmedXiii, and Kailash Gourxiv, it was contended the Government was not bound by the

recommendations made by the Inquiry Commission as such the report or recommendations therein are not sacrosanct. In this regard, it may be

mentioned that the Gauhati University, in its affidavit-in-opposition has annexed as Annexure-A the “Findings of the Departmental Proceeding

(DP) drawn up against Dr. Kandarpa Das the then Director of Gauhati University Institute of Distance and Open Learning (GUIDOL)â€, wherein it

has been mentioned that the Report of Dr. Justice Aftab Hussain Saikia Commission was discussed in the emergent meeting of the Executive Council

convened on 05.10.2020 and had been accepted by the Executive Council vide resolution no. R/EC-05/2020/51(i). In the said affidavit, it has

specifically been mentioned that the report dated 10.09.2021 of the Departmental Proceeding drawn up against the petitioner was accepted and the

Executive Council in its meeting dated 20.09.2021 had accepted the said report and thereafter, in its meeting held on 05.10.2021, the Executive

Council had decided to terminate the petitioner and thereafter, the petitioner was removed vide communication dated 06.10.2021 as per the provisions

of the Assam Services (Discipline and Appeal) Rules, 1964 with immediate effect. Therefore, the said two cited cases do not help the petitioner.

21) By referring to the case of V.P. Gindroniyaii, it was submitted that suspension are of thee types and it was also submitted that in the present case,

the employer had no contractual right to suspend the petitioner or to take disciplinary action against the petitioner and it was submitted that the

petitioner was suspended as a measure of punishment. At the first blush, the argument made by the learned senior counsel for the petitioner appears

to be very persuasive, but nonetheless, by applying the ratio of the said case, the Court is unable to accept the said submissions because the State has

been able to demonstrate that the Governor had been bestowed with the power to suspend by virtue of Section 18 of the Assam General Clauses Act,

1915. It is seen that the Assam General Clauses Act, 1915 was enacted for shortening the language used in Assam Acts and for making certain other

provisions relating to such Acts. It would be relevant to extract the Preamble as well as Section 18 of the said Act, which reads as follows:-

“An Act for shortening the language used in Assam Acts, and for other purposes

Whereas it is expedient to provide for the interpretation of Assam Acts, for shortening the language used therein and for making certain

other provisions relating to such Acts;â€​.

*** *** ***

“18. Power to appoint to include power to suspend of dismiss.- Where, by an act, a power to make any appointment is conferred, then,

unless a different intention appears, the authority having power to make the appointment shall also have the power to suspend of dismiss

any person appointed by it in exercise of power.â€​

22) Therefore, it is apparent that if any Act of the State of Assam does not contain any specific provision, the authorities can always take the aid of

the Assam General Clauses Act, 1915 for all intents and purpose, which includes power to suspend and dismiss. Accordingly, the Court is of the

considered opinion that the impugned order of suspension dated 13.08.2021 and the issuance of show-cause notice dated 16.08.2021 cannot be said to

have been vitiated merely because those have been issued by invoking powers under the provisions of Section 18 of the Assam General Clauses Act,

1915.

23) Nonetheless, without rendering any opinion on the matter, in light of the ratio of the case of V.P. Gindroniyaii, the petitioner might have an

arguable point to claim full salary during the period of suspension. The relevant observation of the Supreme Court of India is to the following effect:-

“6. … The right to suspend as a measure of punishment as well as the right to suspend the contract of service during the pendency of an enquiry

are both regulated by the contract of employment or the provisions regulating the conditions of service. But the last category of suspension referred to

earlier is the right of the master to forbid his servant from doing the work which he had to do under the terms of the contract of service or the

provisions governing his conditions of service at the same time keeping in force the master's obligations under the contract. In other words the master

may ask his servant to refrain from rendering his service but he must fulfill his part of the contract.â€​

24) The learned senior counsel for the petitioner had also made a submission that the action of the State to suspend the petitioner was contrary to the

ratio laid down by the Supreme Court of India in the case of Binapani Dei [S tate of Orissa v. Binapani Dei, AIR 1962 SC 1269]., by projecting that the

petitioner was suspended as a measure of punishment and that it is a well settled proposition of law that one cannot be punished without being

afforded a reasonable opportunity of being heard. In this regard, the Court is of the considered opinion that the action of the State to suspend the

petitioner cannot be held to be vitiated by the ratio laid down in the sad case because the show-cause notice issued on 16.08.2021, i.e. on the third day

of issuing the order of suspension dated 13.08.2021 is itself indicative of the fact that the authorities intend to provide opportunity of hearing to the

petitioner. The order of suspension, having been followed by show-cause notice before taking further action, is not liable to be held as punitive or

vitiated on account of the ratio laid down in the said herein before referred case of Binapani Dei xvi. In this regard, neither (i) the Service Rules

governing the petitioner, and (ii) Fundamental Rules and Subsidiary Rules, nor any authority on the point has been cited to demonstrate that a mere

mentioning of the nature of allegations on which the employee has been suspended or show-cause has been issued would constitute existence of a

pre-determined mind and accordingly, such an argument is negated.

25) It was submitted that not only in the Report by the One Man Inquiry Committee but also the Gauhati University officials had mentioned that the

action on part of the petitioner was an error of judgment and therefore, not a misconduct. It was also submitted that except for 1 (one) student, none

of the remaining 73,912 students had made any complaint about the course they had studied. In this regard, the Court finds that nowhere in the writ

petition, the petitioner had made a statement to the effect that all the 73,912 students had been conferred with a valid degree. Therefore, as the Court

is not called upon to decide as to whether the degrees awarded to 73,912 students of GUIDOL were valid or not, no finding is returned on the said

point. Nonetheless, the Court is merely inclined to observe that the learned Advocate General has made out a strong prima facie point that if the

courses conducted by the GUIDOL were unapproved, uncertainty would prevail on the degree conferred to students attending such course. As a

consequence, the learned Advocate General has also been able to bring home the point that the action of the Governor was based on the basis of a

prima facie opinion that the petitioner was responsible for running unapproved courses in GUIDOL. In this regard, it may be mentioned that the

petitioner has not placed on record any document to inform the DEC/UGC that even without their approval, the GUIDOL was proceeding to impart

education on 23 unapproved courses. It is seen that notwithstanding that the word “misconduct†has not been used in the two impugned orders, in

the case of M.M. Malhotravii, the Supreme Court of India had analysed the word “misconductâ€​ as follows:-

“17. The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position

and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories

of misconduct as closed. It has, therefore, to be noted that the word “misconduct†is not capable of precise definition. But at the same time

though incapable of precise definition, the word “misconduct†on reflection receives its connotation from the context, the delinquency in

performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit

has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the

public purpose it seeks to serve.â€​

26) An ancillary point has been the bone of contention by both sides, which is the initiation of the departmental proceeding against the petitioner for his

alleged conduct in course of past service as Director of GUIDOL. In this regard, it is reiterated at the cost of repetition that this point touches upon

the merit of the case of the parties and that a decision on the point may prejudice either side in course of disciplinary proceeding. Thus situated, the

Court is of the considered opinion that this point be decided without making reference to any factual aspect so that the petitioner does not suffer

prejudice when the disciplinary proceeding against him is considered by the Disciplinary Authority. It appears that on the contention as to whether the

previous service conduct can be taken note of, the case of S. Govinda Menoniii and Bool Chand iv (decided by three Judge Bench) are authorities on

the point. Therefore, other cases cited by the learned Advocate General have not been referred to avoid burdening volume to this order. The relevant

observation of the Supreme Court of India in the case of S. Govinda Menoniii (as extracted from STPL) is quoted herein below:-

In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his

duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is

such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings

should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual

master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the

discharge of his duties as servant of the Government. The test is whether the act or omission has some reasonable connection with the nature and

condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or

devotion to duty as a public servant. We are of the opinion that even the appellant was not subject to the administrative control of the Government

when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act

or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation

for integrity or devotion to duty as a member of the Service. In this context reference may be made to the following observations of Lopes, L.J. in

Pearce. v. Foster, (1886) 17 QBD 536 at p.542:

If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate

dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is

conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified. not only if he

discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.

27) It would be relevant to refer to the finding of the Supreme Court of India on the power to suspend, as laid down in the case of Govinda Menoniii

(extracted from SCC OnLine).

“14. It was lastly submitted that the order of suspension of the appellant dated March 8, 1963 is not in compliance with Rule 7 of the Rules which

states:

“7. Suspension during disciplinary proceedings.â€"(1) If having regard to the nature of the charges and the circumstances in any case, the

Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the

Service against whom such proceedings are started that Government mayâ€

(a) if the member of the Service is serving under it pass an order placing him under suspension, or

* * *â€​

It was pointed out that definite charges were framed on June 6, 1963 and the Government had no authority to suspend the appellant before the date of

framing charges. Reference was made to Rule 5(2) which states:

“5(2). 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 member of the Service charged together with a statement of the allegations on which each charge is based and of any other

circumstances which it is proposed to take into consideration in passing orders on the case.â€​

It was argued by the appellant that the word “charges†which occurs in Rule 5(2) and Rule 7 should be given the same meaning and no order of

suspension could be passed under Rule 7 before the charges are framed under Rule 5(2) against the appellant. We do not think there is any substance

in this argument. Rule 5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or

charges. Under Rule 5(3) a member of the Service is required to submit a written statement of his defence to the charge or charges. The framing of

the charge under Rule 5(2) is necessary to enable the member of Service to meet the case against him. The language of Rule 7(1) is however

different and that rule provides that the Government may place a member of the Service under suspension “having regard to the nature of the

charge/charges and the circumstances in any case†if the Government is satisfied that it is necessary to place him under suspension. In view of the

difference of language in Rule 5(2) and Rule 7 we are of the opinion that the word “charges†in Rule 7(1) should be given a wider meaning as

denoting the accusations or imputations against the member of the Service. We accordingly reject the argument of the appellant on this aspect of the

case.

28) Therefore, in the present case in hand, it is possible for the competent authority, i.e. respondent nos. 1 and 6, to suspend the petitioner having

regard to the nature of charge/ charges and the circumstances of the case. The Court is unable to accept that even for suspending the authority like a

Vice Chancellor or in this regard, any Government Servant, which has civil consequences, the material based on which satisfaction of the competent

authority is recorded, must be of sterling quality. This exercise would amount to a mini trial even before the initiation of a departmental/ disciplinary

proceeding. The learned Advocate General has been able to demonstrate, that notwithstanding whether the charges mentioned in the show-cause

notice succeeds or not, the Chancellor, i.e. the Governor of Assam had lawfully exercised power under Section 18 of the Assam General Clauses Act,

1915 to record his satisfaction of existence of material based on which the petitioner was suspended and show case notice was issued to the

petitioner. They are not found to be vitiated on facts or in law. It is reiterated at the cost of repetition that at this stage, the Court would be a loath to

examine the correctness or otherwise of the Report submitted by the One Man Inquiry Commission.

29) The Court is also unable accept the contention that the satisfaction of the Chancellor (i.e. Governor of Assam), which was based on the Report of

the One Man Inquiry Committee was impermissible in law as the order of suspension. The order of suspension and the show-cause notice cannot be

held to be based on fanciful or imaginary grounds. However, whether the ground on which the petitioner has been suspended and charges framed

against the petitioner are ultimately sustainable or not is left open to be tested in course of the departmental/ disciplinary proceeding.

30) It may be mentioned that some other points which was urged by the learned senior counsel for the petitioner were to the effect that (i) that the lien

of the petitioner to his post of Professor in Department of Foreign Language was discharged; (ii) that there was effort on part of the petitioner to have

unrecognized courses approved; (iii) and therefore, the conducting of unapproved courses was an inadvertent error or bona fide mistake in taking a

decision to continue with the course; (iv) that in his capacity as Director of GUIDOL, the petitioner was merely implementing the decision of the

Academic Council of Gauhati University to continue with the courses; (v) that in the report by One Man Inquiry Committee 3 (three) authorities were

implicated, but only the petitioner has been singled out with punishment; (vi) that the suspension order dated 13.08.2021 was punitive in nature; and

(vii) that the suspension order is stigmatic. These points appear to be highly disputed questions of facts, yet the contents of the Report dated

28.09.2020 by the One Man Inquiry Commission prima facie discloses materials against the petitioner. Therefore, the balance of convenience tilts in

favour of refusal to interfere with the disciplinary proceeding already initiated against the petitioner, and which is stated by the learned Advocate

General at the Bar to be at the final stages. Moreover, from the contents of the impugned show cause notice dated 16.08.2021 (inclusive of the Report

by the One Man Inquiry Commission, forming part of the said show cause notice), prima facie, it cannot be said that the allegations are so absurd that

the same are hit by the three tests laid down in the celebrated case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation

[Provincial Picture Houses Ltd. v Wednesbury Corpora(cid:56)on, (1948) 1 KB 223]. (more popularly known as Wednesbury case). On the basis of the impugned

show cause notice, the Court is unable to return a finding to the effect that the decision-maker â€" (i) had given undue relevance to facts that in reality

lacked the relevance for being considered in the decision-making process, (ii) had not given relevance to facts that were relevant and worthy of being

considered in the decision-making process, or (iii) had made a decision that was completely absurd, a decision so unreasonable that no reasonable

authority could have possibly made it. Thus, it cannot be held that the decision or action of the Governor in issuing the impugned order of suspension

dated 13.08.2021 and the impugned show cause notice was vitiated in any manner whatsoever.

31) It may be mentioned that in course of hearing, a compilation of certain documents and following case laws, being (i) Union of India v. B.V.

Gopinath[Union of India v. B.V. Gopinath, AIR 2014 SC 88]., (ii) State of Tamil Nadu v. Pramod Kumar, IPS & Anr.[ State of Tamil Nadu v. Pramod Kumar,

IPS & Anr., AIR 2018 SC 4060], AIR 2018 SC 4060, (iii) J. Ahmed xii, (iv) A.L. Kalra v. The Project and Equipment Corporation of India Ltd.[ A.L. Kalra v.

The Project and Equipment Corpora(cid:56)on of India Ltd., AIR 1984 SC 136]1, (v) Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court & Ors. [Glaxo

Laboratories (I) Ltd. v. Presiding Officer, Labour Court & Ors., AIR 1984 SC 50]5, were submitted. However, except for the case of J. Ahmedxii, no other

cases were cited at the Bar. Nonetheless, as the cited cases had been supplied to the Court, the same are examined. The cases of B.V. Gopinathxviii

and Pramod Kumarxix are authorities on the point that charge-sheet without the approval of the disciplinary authority is not sustainable. However, in

the present case in hand, the petitioner has not disputed the authority of the Chancellor to issue the impugned order of suspension and show-cause

notice and moreover, such power is derived from Section 18 of the Assam General Clauses Act, 1915. Moreover, as per order dated 06.03.2020

(Annexure-1 to the writ petition), under the authority of the Governor, acting as Chancellor of the KKHSOU, Commissioner & Secretary to the

Governor had issued the order appointing the petitioner as Vice Chancellor of KKHSOU. Therefore, the petitioner is precluded from questioning the

authority of the Governor in issuing the impugned order of suspension and show-cause notice. The case of A.L. Kalraxx would have no application at

this stage because for four reasons assigned therein, the Supreme Court of India had held that the orders passed by the Disciplinary Authority and the

Appellate Authority were illegal and invalid. The same ratio cannot be applied to quash the suspension order and/or the show-cause notice. The case

of Glaxo Laboratories (I) Ltd.xxi would also not apply in this case, because the said case was decided on the question as to whether the allegations of

misconduct fell within the purview of the Standing Orders applicable to the said industry, which is not the fact situation in the present case in hand.

32) Thus, the herein before referred issue no. (i) is decided in the affirmative and against the petitioner and the issue no. (ii) is decided in the negative

and against the petitioner.

33) Accordingly, the Court is of the considered opinion that no interference is called for at this stage in respect of (i) the impugned order dated

13.08.2021 (Annexure-4), by which the petitioner, who was the Vice Chancellor of KKHSOU, was suspended, and (ii) show cause notice dated

16.08.2021 (Annexure-5) issued to the petitioner. Consequently, the writ petition is dismissed. The parties are left to bear their own cost.

34) Before parting with the record, it is clarified and reiterated that the Court has not entered into the merit of the contentious issues relating to Report

of the One Man Inquiry Committee, save and except two legal issues on which opinion of the Court has been expressed, which is with a view that

none of the parties should be prejudiced in course of Departmental/ Disciplinary Proceeding that has been initiated against the petitioner.