Dr. Lalji Prasad Gupta vs Vice-Chancellor. B.H.S. and Others

R.A. Sharma, J.—Petitioner, who is Reader in the Department of Basic Principles, Institute of Medical Sciences, Benaras Hindu University, Varanasi (hereinafter referred to as the University), took L.T.C. advance of Rs. 14,190 in March, 1988. On June 2, 1988, he submitted his L.T.C. bill for Rs. 13,868.50. In that bill, the names of his mother and daughter were also mentioned, although they have not travelled with him. Two days after submission of the said bill, Petitioner on 4.6.1988 moved an application for its correction, by deleting the names of his mother and daughter therefrom. The bill was, however, not permitted to be corrected and a charge-sheet dated 24/26.9.1988 containing the allegations of submitting the false L.T.C. bill, was served on the Petitioner. Petitioner submitted his explanation stating therein that by mistake the names of his mother and daughter were mentioned in the L.T.C. bill submitted by him on 2.6.1988, but when he realised the mistake after two days, he moved an application on 4.6.1988 for deleting their names from the bill. Vice-Chancellor by order dated 4.1.1989 rejected his explanation and imposed the following punishments on the Petitioner:

(a) Cancellation of L.T.C. bill for Rs. 13,868.50 and realisation of the L.T.C. advance of Rs. 14,190 with 9 1/2 percent interest;

(b) Cancellation of L.T.C. for the next two Blocks; and

(c) Stoppage of future increments for five years.

Petitioner applied for review of the order of the Vice-Chancellor, but it was rejected on 10/11.3.1989. Thereafter he filed an appeal against the above order before the Executive Council of the University. As no order was passed by the Executive Council in his appeal, Petitioner filed writ petition No. 21478 of 1989, which was allowed holding that against the order of the Vice-Chancellor, statutory appeal lies before the Executive Council of the University and the Vice-Chancellor was not justified to withhold the appeal. Direction was accordingly issued to the Vice-Chancellor to forward the Petitioner''s appeal to the Executive Council for decision by the latter in accordance with law. After the above decision of this Court, the Petitioner also moved an application for amendment of his appeal. The Executive Council on 4/5.8.1990 dismissed the appeal, which was communicated to the Petitioner vide letter dated 6/9.10.1990. Petitioner challenged the above order of Executive Council by means of writ petition No. 4994 of 1991 which was allowed and the resolution of the Executive Council dismissing the Petitioner''s appeal, was quashed. The Executive Council was further directed to re-hear the appeal of the Petitioner on the material which was before the Vice-Chancellor. The operative portion of the judgment of this Court in the above writ petition of the Petitioner, is reproduced below:

The petition succeeds and is allowed. The aforesaid resolution of the Executive Council is quashed. The Executive Council is directed to re-hear the appeal of the Petitioner on the material on record which was before the Vice-Chancellor and give its own decision on merits and in accordance with law. We have no doubt that the Executive Council shall dispose of the appeal of the Petitioner very expeditiously. There shall be no order as to costs. Dated 25.11.1991.

The Executive Council thereafter dismissed the appeal again, on the basis of the report of the Enquiry Committee appointed by it, by a resolution dated 17/19.1.1993, which was communicated to the Petitioner by the Registrar by letter dated 26.2.1993--12.3.1993. Being aggrieved by it, the Petitioner has filed this writ petition.

On 30.3.1993, this Court while entertaining the Petitioner''s writ petition, passed the following order:

Learned counsel for the Respondents prays for and is allowed ten days'' time to serve copy of counter-affidavit. Petitioner will have three days'' time to serve copy of rejoinder affidavit.

List this case on 26th April, 1993, when Learned Counsel for Respondent shall produce relevant record pertaining to the enquiry including the one conducted by one-man Committee appointed by Executive Council.

By the above order, ten days'' time was granted to the Respondents who were represented by a learned Counsel, to file counter-affidavit and the case was directed to be listed on 26.4.1993, on which date learned Counsel for the Respondents was to produce the relevant record pertaining to the enquiry including the report of one-man Committee. However, neither any counter-affidavit was filed nor was the record produced by the Respondents before this* Court. On 9.2.1994, the Respondents were given further time of two weeks for filling counter-affidavit. Even then, no counter-affidavit was filed. On 16.3.1994, they were granted three weeks'' and no more time to file counter-affidavit. But again they failed to file the counter-affidavit. The case thereafter was listed for some times, but could not be taken up. It was on 21.3.1996 that this case could be taken up in presence of the learned Counsel for both the parties, on which date learned Counsel for the Respondents had filed the counter-affidavit. Inspite of the stop order passed on 16.3.1994 for filing counter-affidavit, we have accepted the counter-affidavit, as the case was argued by learned Counsel for both the parties. The Petitioner has also filed rejoinder-affidavit on the above date. We have heard learned Counsel for the parties.

Learned Counsel for the Petitioner has made four submissions in support of the writ petition, viz., (i) Executive Council has passed the impugned resolution in violation of the principles of natural justice; (ii) the resolution of the Executive Council is in violation of this Court''s judgment dated 25.11.1991, whereby the Petitioner''s writ petition was allowed and the Executive Council was required to decide his appeal; (iii) even on facts, no case of misconduct or fraud is made out against the Petitioner; and (iv) uncalled for harassment has been caused to the Petitioner by the Respondents by their acts and omissions.

There is violation of the principles of natural justice for two reasons, namely, (1) the Executive Council passed the impugned resolution relying on the report of one-man Committee without giving its copy or gist thereof to the Petitioner, and (2) the Executive Council also placed reliance on the facts/allegations which were neither mentioned in the charge-sheet nor was the Petitioner given an opportunity to rebut them. This is clear from the following facts and circumstances:

After this Court''s decision dated 25.11.1991, whereby the earlier resolution of the Executive Council dismissing the Petitioner''s appeal was quashed and direction was issued to decide the appeal afresh, the Executive Council appointed the one-man Committee by order dated 7/8.4.1992, to make enquiry in the whole matter and submit its report. This Committee gave oral hearing to the Petitioner and submitted its report to the Executive Council. Relying on the said report the Executive Council dismissed the appeal by the resolution dated 17/19.1.1993, relevant extract from which is reproduced below:

The report of the Committee appointed by the Executive Council vide ECR No. 41, dated 7/8th April, 1992, arising out of the directions of the Hon''ble High Court was discussed at length.

The Council was of the considered opinion that insertion of mother''s and daughter''s name by Dr. Lalji Prasad Gupta cannot be ignored as an inadvertant mistake and cannot be condoned as an "admitted" mistake only because two days after the submission of his original T.A. bill containing the above two names, he requested for a correction. It was an afterthought and cannot mitigate the seriousness of a deliberate fraud.

Dr. Gupta committed a similar offence when he had availed of L.T.C. earlier (Block of 1978-88) in which he had declared Sanju as his son which is not a fact.

In Paragraphs 27, 38, 40 and 41 of the writ petition the Petitioner had stated that copy of the enquiry report was not given to him before his appeal was dismissed and the impugned resolution has been passed by the Executive Council in violation of the principles of natural justice. In Paragraph 36 of the counter-affidavit, it has been stated by the University that there was no enquiry in strict sense and the Executive Council merely appointed one of its members to prepare a report so that the matter is compiled and concised in order to facilitate the deliberation by the members of the Executive Council. Petitioner has filed rejoinder affidavit denying the above averments contained in the counter-affidavit. The aforesaid stand of the Respondents does not appear to be correct for two reasons; firstly, nature of the Committee, its power and the purpose for which it was appointed, can be known only from the order of appointment and the report submitted by it. The Respondents have not placed those documents before this Court, inspite of this Court''s order dated 30.3.1993, directing them to "produce relevant record pertaining to the enquiry conducted including the one conducted by one-man Committee appointed by the Executive Council". Not only that, the Respondents have failed to comply with the above order dated 30.3.1993, but they have also not filed these documents alongwith their counter-affidavit. This Court is, therefore, fully justified to draw an adverse inference against the Respondents; and secondly, the perusal of the impugned resolution of the Executive Council and the pleadings of the parties clearly indicate that an Enquiry Committee which was appointed by the Executive Council, after giving oral hearing to the Petitioner, submitted its report which was discussed at length in the meeting of the Executive Council, Had the report been merely a statement containing compilation of the facts so as to facilitate the deliberation in the meeting of the Executive Council, it was not required to be "discussed at length".

It is settled by Hon''ble Supreme Court that a person cannot be punished on the basis of the material which was neither supplied nor was it disclosed to him. It is sufficient to refer two cases only, one of which is in State Bank of India and others Vs. D.C. Aggarwal and another, , wherein the Hon''ble Supreme Court has laid down as under:

Imposition of punishment to an employee, on material which is not only not supplied but not disclosed to him, has not been countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law itself.

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Taking action against an employee on confidential document which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the Disciplinary Authority. May be that the Disciplinary Authority has recorded its own findings and it may be coincidental that reasoning and basis of returning the finding of guilt are same as in the CVC report but it being a material obtained behind back of the Respondent without his knowledge or supplying of any copy to him the High Court in our opinion did not commit any error in quashing the order.

The other case is Vrajlal Manilal and Co. Vs. Union of India (UOI) and Another, , wherein the Supreme Court struck down the decision of the Central Government, under Rules 57(2) and 59 of Mineral Concession Rules, 1949, on the ground that it was rendered without giving an opportunity to the review applicant to have his say against the report of the State Government, which the Central Government received before deciding the review application. Relevant extract from the said decision of the Supreme Court is reproduced below:

Mr. Pathak is well-founded in his submission as to the nature of the jurisdiction exercised by the Union Government when disposing of an application for review under Rule 59 and the decision referred to does support him that the Central Government acting under the rule referred to is functioning as a quasi-judicial authority. It does follow therefore that they could not act on the basis of material as regards which the Appellants had no opportunity to make their representation.

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If the report of the State Government made any points against the representations made by the Appellants and these were being taken into consideration by the Union Government, in common fairness, the Appellants were entitled to be informed as to what these were and an opportunity to point out how far they militated against the contentions raised by them.

In the instant case also, the Executive Council, when disposing of the appeal, functions as quasi-judicial authority. It is, therefore, not open to it to rely on any material without disclosing it to the Appellant.

The decision of the Supreme Court in State of Uttar Pradesh Vs. Batuk Deo Pati Tripathi and Another, , on which reliance has been placed by the learned Counsel for the University, cannot be of any help to him. In that case, the question involved therein was as to whether smaller body known as Administrative Committee of Allahabad High Court could function as a court in administrative side. Supreme Court placing reliance upon the Rules of the High Court held that Administrative Committee has such a power. That is not the position in the instant case.

Principles of natural justice have also been violated by the Executive Council because it has relied upon a fact/charge regarding lapse alleged to have been committed by the Petitioner while availing of L.T.C. in Block 1978-88. But it was not mentioned in the charge-sheet and the Petitioner had no opportunity to rebut it or to produce evidence in its rebuttal. It is not open to the Executive Council to punish the Petitioner on the charge which was not the subject-matter of the charge-sheet and which was never communicated to him. The first submission of the learned Counsel for the Petitioner, as such, has to be accepted.

The second contention of the Petitioner is also liable to be accepted. This Court in its judgment dated 25.11.1991 issued specific direction to the Executive Council to "re-hear the appeal of the Petitioner on the material on record which was before the Vice Chancellor and give its own decision on merit and in accordance with law". The Executive Counsel was, therefore, required to decide the appeal only on the basis of the material which was before the Vice-Chancellor. But in the instant case, it has acted on the material which was not before the Vice-Chancellor, namely, the report of the one-man Enquiry Committee and the alleged lapse of the Petitioner while availing of L.T.C. in Block 1978-88. Such a course was not open to the Respondents.

The third and fourth submissions of the learned Counsel for the Petitioner can be decided together. Whether an employee is guilty of misconduct or fraud is a question to be decided primarily on the basis of material on record by the concerned authority. This Court normally does not interfere under Article 226 of the Constitution with the findings recorded by such an authority, unless they suffer from manifest error of law. But the instant case warrants interference by this Court. Petitioner submitted L.T.C. bill on 2.6.1988, but within two days thereafter, he moved an application for its correction by deleting the names of his mother and daughter therefrom. He applied for correction of the error in the bill even before the University authorities could detect the mistake. The position might or might not have been different, had the Petitioner applied for correction of the bill after he was served with the charge-sheet. But that is not the position here. The finding of the Executive Council to the effect that the application for correction of the L.T.C. bill "was an afterthought and cannot mitigate the seriousness of a deliberate fraud", is not justified, in view of the facts and circumstances of the case. An act of deception for unlawful gain can be said to be a fraudulent act. But if the mistake is corrected or is sought to be corrected before it has been acted upon by the party to be affected thereby, it cannot be said to be a case of fraud or misconduct so as to justify the punishment. In such a case, no reasonable person can draw an inference of fraud or misconduct.

As the impugned orders are being quashed on other grounds, it is not necessary to express any final opinion on the Petitioner''s plea regarding his harassment by the University authorities.

For the reasons given above, this writ petition is allowed with costs. The impugned order dated 4.1.1989 (Annexure 3 to the writ petition) passed by the Vice-Chancellor and the resolution dated 17/19.1.1993 (Annexure 11 to the writ petition) passed by the Executive Council of the University, are quashed.