Dr. Sanjib Bhattacharjee vs Assam University

Heard Mr. P. Mahanta, Ld. Advocate, for the writ petitioner in both the petitions. Also heard Mr. K.N. Choudhury, Ld. Senior Counsel assisted by

Mr. S.C. Keyal, Advocate, Standing Counsel, Assam University for the Respondents.

These two petitions, filed by the same petitioner were heard together and are disposed of by this common judgement considering that the issues

involved in these petitions are closely interrelated.

In the first writ petition, W.P.(C) No.7677 of 2019, the suspension order of the petitioner has been challenged. In the second writ petition, W.P.(C)

No.189 of 2020, the petitioner has challenged the memorandum of charges issued against him.

The petitioner is the Registrar of Assam University, Silchar, Assam, hereinafter referred as the “Universityâ€. He was placed under suspension

by the University authorities by invoking power under Rule 10 (1) of the CCS (CCA) Rules, 1965 and Acts and Statutes, vide order dated 04.10.2019

issued by the Registrar (In- Charge) of Assam University as directed/approved by the Vice-Chancellor of the University.

Being aggrieved, the petitioner has challenged the said suspension order by filing the first writ petition, W.P.(C) No. 7677 of 2019.

While the first writ petition was pending, the University authorities issued the memorandum of charges dated 09.12.2019 which has been challenged

in the subsequent petition, W.P.(C) No. 189 of 2020.

Thus, this Court is called upon to examine the validity of the suspension order as well as the charges framed against the petitioner.

The University authorities have filed their affidavits- in-opposition in both the writ petitions contesting the claim of the petitioner and the petitioner

also responded to the same by filing his replies.

Learned Senior Counsel appearing for the University has submitted that in the meanwhile, the suspension order has been reviewed by the review

authority on 26.12.2019 and accordingly, the Vice-Chancellor has issued an order on 31.12.2019 extending the period of suspension by another 90

days from the date of completion of initial period of suspension and as such, the first writ petition has become infructuous.

As far as the second writ petition is concerned, it has been submitted that the petitioner is yet to file his reply to the memorandum of charges and

since it is at the stage of furnishing memorandum of chares, the second writ petition is premature and thus, not maintainable, relying on the decisions of

the Hon’ble Supreme Court in Union of India and another Vs. Ashok Kacker ; 1995 Supp (1) SCC 18,0 State of Punjab and others vs. Ajit Singh,

(1997) 11 SCC 368, and Secretary, Ministry of Defence and others vs. Prabhash Chandra Mirdha, (2012) 11 SCC 565.

Learned counsel for the petitioner, however, has countered the said contestation contending that in the event there is an element of malice or mala

fide, motive involved in the matter of issue of a charge-sheet or if the concerned authority is so biased that the enquiry would be a mere farcical show

and conclusions are well-known, in that event, law courts are otherwise, justified in interfering at the earliest stage so as to avoid harassment and

humiliation of a public official, in support of which, the learned counsel for the petitioner has placed reliance on the decision of the Hon’ble

Supreme Court in State of Punjab vs. V. K. Khanna and others, (2001) 2 SCC 330.

In the light of the above broad positions taken by the contesting parties, the issues raised in these two petitions are to be considered and decided.

This would necessitate delving a bit deeper into the factual details and respective submissions so advanced.

The petitioner has narrated the background facts preceding the issuance of the suspension order and framing of memorandum of charges.

It has been stated that the petitioner was granted LTC for the bloke year 2018-2021 to visit Jaisalmer along with his family vide official order dated

02.09.2019. The petitioner in order to avail the said LTC granted applied for station leave from the Vice-Chancellor from 02.10.2019 to 11.10.2019

through email dated 02.10.2019 and also applied for one day of casual leave on 03.10.2019, on account of Gandhi Jayanti and Durga Puja. The

petitioner, accordingly, proceeded to Jaisalmer. However, to his shock, the petitioner received an email from the Joint Registrar, Administration,

Assam University on 04.10.2019 informing him of his suspension, which is the subject matter of challenge in WP(C) No. 7677 of 2019.

The grounds on which the said suspension order has been challenged are as follows.

(i) The suspension is prima facie illegal as it was issued without jurisdiction by the Registrar-in-charge, even if it had the approval of the Vice-

Chancellor, who is neither the appointing authority nor the discipline authority. According to the petitioner, the Executive Council of the University is

the appointing authority and disciplinary authority of the Registrar.

(ii) Even if assuming that the Vice-Chancellor was competent to direct the Registrar-in-charge to issue the suspension order, the Vice-Chancellor

ought to have forthwith reported to the appointing authority, the Executive Council, the circumstances in which the suspension order was issued.

(iii) The suspension order is devoid of any reasons and as such it is arbitrary.

(iv) The suspension order was issued purportedly on the basis of certain complaint made by an association whose credentials have not been

established and which was found to be non-existent.

(v) Mala fide has been also alleged contending that the petitioner had been already granted LTC by the University authorities and the suspension order

was issued after the petitioner had already proceeded for the LTC.

The stand of the University as reflected in the affidavit in opposition is that the Vice-Chancellor of the University has the authority to suspend the

petitioner in terms of the power vested upon him by Section 12(3) of the Assam University Act, 1989, hereinafter referred to as the “Act†which

provides that, “the Vice-Chancellor may, if he is of the opinion that immediate action is necessary on any matter, exercise any power conferred on

any authority of the University by under this Act and shall report to such authority the action taken by him on such matter.â€​

According to the University, the Vice-Chancellor, having thus empowered, delegated his authority to the Registrar-in-charge to issue the suspension

order of the Registrar as provided under the Assam University Act (hereinafter referred to as the ‘Act’) and the Statute framed thereunder.

Though as to under which Act and Statues (other than CCS(CCA) Rules, 1965) the suspension order was issued has not been specifically mentioned

in the suspension order, in the affidavit-in-opposition, Statute 3(5) and Statute 44 have been referred to.

Statute 3(5) provides that the Vice-Chancellor shall have all the powers necessary for the proper maintenance of discipline in the University and he

may delegate any such powers to such person or persons as he may deem fit.

Statute 44 provides that subject to the provisions of the Act and the Statutes, any officer or authority of the University may delegate his or its powers

to any other officer or authority or person under his or its respective control and subject to the condition that overall responsibility for the exercise of

the powers delegated shall continue to vest in the officer or authority delegating such powers.

It has been also submitted that the matter relating to suspension of the petitioner was reported to the Executive Council by the Chairman, who is the

Vice-Chancellor and it was confirmed by the Executive Council on 25.10.2019, thus the Vice-Chancellor acted as per the provisions of the Act.

The University authorities in their affidavit -in-opposition have stated the grounds for placing the petitioner under suspension, which may be stated

briefly as follows:

(i) Manipulation of roster for Professor in the University for personal benefit.

It has been alleged that while issuing the advertisement for the teaching positions of the University under Employment Notification no. 2/2019, dated 6

August 2019, the petitioner had manipulated the roster point relating to the post of Professor in the Department of Hospitality and Tourism

Management by converting the post of Professor reserved for ST to unreserved (UR) so as to make himself eligible to apply for the said post, for

which the petitioner did apply later on.

It was alleged that such manipulation of the roster point was contrary to the directives issued by the University Grants Commission (UGC) in that

regard.

It has been alleged that a Committee was constituted under the Chairmanship of one Professor GP Pandey with an external member, Dr. KL Khera

for finalising the roster of teaching faculty of Assam University, Silchar. The Committee noted that there were 40 sanctioned posts of Professors and

19 Professors were already in place (16 UR and 02 SC) and 01 being utilised in the lower grade. As a result, there would be 02 (UR & PWD), 10

(OBC), 04 (SC), 03 (ST) and 02 (EWS) posts to be filled up.

Based on the report of the Committee, the Liaison Officer, who was specifically appointed for enforcement of orders of reservation in posts and

services, made a note as per the policy of the Government of India by stating that the 40th position of the post of Professor should be earmarked for

ST. According to the University, though one expert Mr. S.P. Dhyani DR(Estt.) BHU was appointed to look into the said roster prepared, the petitioner

did not point out how the views of the Liaison Officer was not correct and by misusing his position misled the Vice-Chancellor by overruling the

observation of the Liaison Officer and also got him removed from his position.

It is the stand of the University that the said roster point was thus manipulated by the petitioner to enable him to apply for the said post by making a

unreserved post.

(ii) The University further alleged that though the petitioner had applied for the said post of Professor in Hospitality and Tourism Management and he

was supposed to inform the Vice-Chancellor of his application, he did not do so. He was involved in processing of applications/issue of call letters and

other confidential administrative works relating to selection of candidates which is normally done by the Registrar.

(iii) The University also alleged that the petitioner took reimbursement of Rs.50595/- by submitting fake computer generated bills and payment

receipts, which amounts to financial impropriety in violation of GFR 2017 and GFR 155.

(iv) The University also alleged serious irregularities against the petitioner with financial implication in several proposals relating to Engineering

Sections. It has been contended that a two member Enquiry Committee was constituted to look into the matter, which observed that the Finance

Section was bypassed without proper scrutiny and the proposals were directly placed before the Vice-Chancellor by the Registrar for approval.

(v) There are allegations of tempering of records/inaction against missing records /concealing of facts/ distortion of facts leading to deceit on the part

of the administration as per the observations made in the enquiry.

(vi) It is been also alleged that there is a report of the Chief Vigilance Officer (CVO) on complaints of corruption against the petitioner which

recommended the Vice-Chancellor to constitute an enquiry committee to further delve into the matter.

(vii) There is also the allegation that the petitioner had violated Statute 5(4) of the University by informing the Vice-Chancellor that he has given

charge of the office of the Registrar to Dr. Suprabir Dutta Roy by usurping the power of the Vice-Chancellor to make such arrangement.

(viii) It has been also alleged that the petitioner had made several communications to the Ministry without approval of the Vice-Chancellor by

requesting the Ministry to direct the Vice-Chancellor to take punitive action against his officials which tantamounts to unauthorised communication and

insubordination.

(ix) There is also allegation of dereliction of duties by the petitioner. It has been alleged that Assam University Students Union went on agitation from

27 September 2019 by locking the office of the Vice-Chancellor and the chamber of the Registrar and it was expected of the Registrar as the

administrative head of the University to take appropriate steps to resolve the matter with the Students’ Union and ensure that the office of the

Vice-Chancellor and chamber of the Registrar were unlocked at the earliest so that the normal working of the University could resume. However, the

Registrar made no efforts to end the same and proceeded with his pre-scheduled program of availing personal leave and LTC thereby leaving the

University in uncertain condition.

(x) It has been also alleged that there are numerous such instances for which the University had to face embarrassing situations to regulatory bodies

like the UGC/MHRD.

In fact these are the very grounds stated in in the affidavit -in-opposition filed by the University in the first petition, which mainly constitute the

charges as mentioned in the memorandum of charges furnished to the petitioner which has been challenged in the second petition and as such the

memorandum of charges need not be elaborately dwelled upon again.

The main plea of the petitioner in the first writ petition is that the suspension order was issued by an incompetent authority and also issued mala

fide while the petitioner was on holiday as such the suspension order cannot be sustained.

The core contentions of the petitioner in the second writ petition is that the aforesaid memorandum of charges was issued for collateral and colourable

purposes and these charges are not based on facts and in fact based on stale grounds resurrected merely to harass him and actuated by mala fide.

This Court would like to first deal with the issue raised by the petitioner that the suspension order issued by the Registrar-in-charge was without

jurisdiction.

It is the stand of the University that the Vice-Chancellor was competent to issue such an order by invoking the power conferred under Section 12(3)

of the Act, and by delegating his authority under Statute 3(5) and Statute 44, the impugned suspension order was issued by the Registrar-in-charge.

Section 12(3) of the Act reads his follows:

“12(3). The Vice-Chancellor may, if he is of the opinion that immediate action is necessary on any matter, exercise any power conferred on any

authority of the University by under this Act and shall report to such authority the action taken by him on such matte;

Provided that ……………………..

Provided further that………â€​

(emphasis added)

Statute 3(5) reads as follows:

“3(5). The Vice-Chancellor shall have all the powers necessary for the proper maintenance of discipline in University and he may delegate any

such powers to such person or persons he may deem fit.â€​

Statute 44 reads follows:

“44. Subject to the provisions of the Act and the Statutes, any officer or authority of the University may delegate his or its powers to any other

officer or authority or person under his or its respective control and subject to the condition that overall responsibility for the exercise of the powers so

delegated shall continue to vest in the officer or authority delegating such powers.â€​

The petitioner was placed under suspension by the University authorities in exercise of power conferred by Rule 10(1) of the CCS(CCA) Rules,

1965 as mentioned in the impugned suspension order dated 04.10.2019.

Relevant portions of Rule 10(1)of the CCS(CCA) Rules, 1965 read as follows:

“10. Suspension:

(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by

the President, by general or special order, may place a Government servant under suspension-

(a) where a disciplinary proceeding against him is contemplated or is pending; or

(aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:

Provided that..................... ............ ... ... ... ... ... ... ...

(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority -

(a) ………………………

(b) ………………………

…………………………………………………………………………………

………………………………………………………………..â€​

From the above it is very clear that as per CCS(CCA) Rules, 1965 only the following authorities can place a government servant under suspension:

(i) The appointing authority.

(ii) Any authority to which the appointing authority is subordinate.

(iii) The disciplinary authority.

(iv) Any other authority empowered in that behalf by the President, by general or special order.

Accordingly, only the Executive Council which is the appointing authority and discipline authority to issue the suspension order.

The Executive Council is not subordinate to the Vice-Chancellor.

Neither the Vice-Chancellor is the discipline authority nor an authority empowered in that behalf by the President by general or special order.

Thus, as far as CCS(CCA) Rules, 1965 are concerned, it is evidently clear that Vice-Chancellor does not have the authority to suspend the petitioner.

Consequently, when he does not possess the power to suspend, the question of delegating such an authority to another person does not arise.

Under such circumstances, this Court has to examine whether the Vice Chancellor has the authority to suspend the petitioner under any provision of

the Assam University Act or the Statute framed thereunder.

It had been noted that in the suspension order, apart from Rule 10(1) of the CCS(CCA) Rules, 1965 mention has been made of Acts and Statutes

of the University, without specifying the specific provisions of the Acts or the Statutes.

However, as mentioned in the affidavit-in-opposition, one may refer to certain provisions of the Assam University Act and Statute which deal with

appointment, disciplinary and other powers of the Executive Council.

Section 15(1) of the Assam University Act provides that the Registrar shall be appointed in such manner as may be prescribed by the Statutes.

Clause 5 of the Statute provides that the Registrar shall be appointed by the Executive Council on the recommendation of the Selection Committee

constituted for the purpose and shall be a whole-time salaried officer of the University.

It is, therefore, evidently clear that the Executive Council, and not the Vice-Chancellor, is the appointing authority of the Registrar.

Statute 13(2)(v) provides the power of the Executive Council to regulate and enforce discipline among employees in accordance with the Statutes and

Ordinances.

Statute 28(1) provides that “Where there is an allegation of misconduct against a teacher, a member of the academic staff or other employee of

the University, the Vice-Chancellor, in the case of the teacher or member of the academic staff, and the authority competent to appoint (referred to as

the appointing authority) in the case of other employee, may, by order, in writing place such teacher, member of the academic staff or other employee

as the case may be under suspension and shall forthwith report to the Executive Council the circumstances in which the order was made…â€​

It can thus be seen that Statute 28(1) specifies the authorities having the power of suspension of the teachers, members of the academic staff and

employees of the University.

As per Statute 28(1) the Vice-Chancellor is the competent authority to place a teacher or a member of the academic staff.

In case of an employee, who is neither a teacher nor a member of the academic staff, it is the appointing authority (and not the Vice- Chancellor),

which is the competent authority to place such an employee under suspension.

The post of Registrar is admittedly not a teacher nor a member of the academic staff and as such, the Vice-Chancellor is not the competent authority

to place the Registrar under suspension.

Since the Register is one of the “other employees of the University†as mentioned in Statute 28(1), the appointing authority, i.e., the Executive

Council is the competent authority to place the Registrar under the suspension and certainly not the Vice-Chancellor.

Thus, on conjoint reading of Rule 10(1) of the CCS (CCA) Rules, 1965 and Section 15(1) of the Assam University Act along with Statute 13(2)

(v), Statute 28(1), it is abundantly clear that the Executive Council, being the appointing authority of the Register, is the competent authority to place

the Registrar under suspension and not the Vice-Chancellor.

As mentioned above, it is not the case of the University that the petitioner was suspended by an authority which is above the Executive Council.

The Vice-Chancellor is admittedly not above the Executive Council, in which event, unless there are specific provisions under the Assam University

Act or the Statutes to enable the Vice-Chancellor to order suspension, the impugned suspension order could not have been issued at the instance of

the Vice-Chancellor.

The only provision which is relied upon by the University authorities is the power of the Vice-Chancellor as provided under Section 12(3) of the

Assam University Act to place the petitioner under suspension.

As quoted above, it is a wide power given to the Vice-Chancellor to act when immediate action is necessary on any matter even though authority to

exercise such power is conferred on other authority. As a corollary, unless immediate action is necessary, this power provided under Section 12 (3)

could not be exercised by the Vice-Chancellor. Under Section 12(3) of the Act, the Vice-Chancellor can exercise such power which is otherwise

conferred on other authority of the University, if “immediate action is necessaryâ€​.

In view of the above, what one can say is that if “immediate actionâ€​ was necessary to place the petitioner under suspension, though the power

to suspend the Registrar is vested to the Executive Council, the Vice-Chancellor by virtue of the power conferred under Section 12(3) of the Act

could suspend the Registrar.

This Court would, accordingly, hold that even though the Executive Council was the competent authority in terms of Statute 28(1) to place the

Registrar under suspension, being the appointing authority of the Registrar under Statute 5(1), this power to suspend can be also exercised by the

Vice-Chancellor, even though he is not the appointing authority nor the disciplinary authority, by invoking power under Section 12(3) of the Act, if

“immediate actionâ€​ to place the petitioner under suspension was deemed necessary by the Vice-Chancellor.

In other words, the authority of the Vice-Chancellor to exercise the power conferred under Section 12 (3) of the Act would be contingent on the

necessity to take “immediate actionâ€. If there be no such requirement to take “immediate actionâ€, this power conferred under Section 12(3)

of the Act cannot be invoked by the Vice-Chancellor, including for placing any employee under suspension.

In the opinion of this Court, “immediate actionâ€​ would mean certain action which would be required to be taken without any delay, or any such

action which brooks no delay. Power has been given to the Vice-Chancellor to deal with emergent situations calling for urgent actions and response

and not matters which can be dealt with in the usual and normal course. The reason is not far to seek. The purpose is to prevent any inconvenience or

prejudice to the proper administration or smooth functioning of the University because of any delayed action by any of the University authorities. Any

action which could be taken in a routine manner and which does not cause any inconvenience or prejudice to the administration and functioning of

University, cannot qualify to be considered as “immediate actionâ€​ within the meaning and scope of Section 12(3) of the Act.

Section 12(3) of the Act thus confers a very general and broad discretionary power to the Vice-Chancellor to deal with any emergent situation

requiring immediate action for smooth functioning of the University which may also include the power to place any employee under suspension, even if

the power to suspend such an employee is vested to other authority.

The power to suspend an employee of the University (which would include Registrar) has been specifically entrusted to the appointing authority

(Executive Council, in case of Registrar) as provided under Statute 28(1) and not to the Vice-Chancellor.

Under such circumstance, if the Vice-Chancellor invokes the special power under Section 12(3) of the Act to place an employee under suspension,

such exercise of power obviously is by way of exception to the general power of the appointing authority to place an employee under suspension.

Such power granted to the Vice-Chancellor to take immediate action is by way of exception and, therefore, is to be strictly constructed and

interpreted. Accordingly, it must be ensured that, circumstances attending the exercise of such exceptional power are fully satisfied, as otherwise,

there would not be any difference between the general power of the appointing authority to place an employee of the University under suspension as

provided under Statute 28(1) and exceptional power given to the Vice-Chancellor to place an employee under suspension under Section 12(3) of the

Act and there would be duplication of authorities for the same purpose.

These similar powers contemplated under Section 12(3) of the Act and Statute 28(1) are to be exercised under different circumstances by different

authorities. The power under Statute 28(1) to suspend is to be exercised by the appointing authority of an employee of the University under normal

circumstances and the power under Section 12(3) of the Act to suspend an employee is to be exercised by the Vice-Chancellor (which power is

otherwise is vested to other appointing/disciplinary authority) under special circumstances requiring “immediate actionâ€​.

Accordingly, while examining the power of the Vice-Chancellor to suspend the petitioner by invoking power under Section 12(3) of the Act, the

attendant issue which arises for consideration is to scrutinise the circumstances under which the petitioner was placed under suspension to ascertain

whether “immediate action†by way of suspension was necessary. In other words, whether placing the petitioner under suspension by the

impugned order can be said to be an “immediate action†equired to be taken at the relevant time under the circumstances by the Vice-Chancellor

so that, such “immediate action†in placing the petitioner under suspension by the Vice-Chancellor can be saved by the special provisions of

Section 12(3) of the Act , for otherwise, under normal circumstances it was the Executive Council which was empowered to place the petitioner

under suspension and not the Vice-Chancellor.

Thus, it would be required to ascertain as to whether there was any immediate and urgent need to place the petitioner under suspension at that time.

Normally, as to whether an employee is required to be placed under suspension is a matter which is within the discretion of the

disciplinary/appointing authority and depended on subjective satisfaction of the disciplinary/appointing authority. Yet, if there are materials to show, as

insisted by the petitioner that, no situation or circumstances existed at the relevant time which warranted immediate action by way of suspension of the

petitioner, and such a suspension order was issued for collateral purposes, such an action by the Vice-Chancellor of the University to place the

petitioner under suspension by invoking power under Section 12(3) would become suspect.

In order to examine as to whether circumstances existed at the relevant time justifying the “immediate action†taken by the Vice-Chancellor

to put the petitioner under suspension, the grounds on which the petitioner has been placed under suspension will have to be looked into as these will

indicate whether there was any need for such urgent action.

As discussed above, in the affidavit-in-opposition filed by the University, the following grounds have been cited for placing the petitioner under

suspension.

The first ground relates to alleged manipulation of roster for Professor in the University for personal benefit by advertising one post of Professor in

Hospitality and Tourism Management by converting it as an unreserved post, though it was meant to be reserved for the ST category, so that the

petitioner can also apply for the said post.

It may be mentioned that there is a writ petition pending before this Court challenging the said advertisement, being WP(C) No. 7077/ 2019.

Incidentally, in the said proceeding it was submitted on behalf of the University that the reservation was made after properly verifying the vacancy

positions vis-Ã -vis the reservation meant for the SC/ST candidates and as such it does not suffer from any illegality.

Though, this Court is not making any observation as regards correctness or otherwise of the aforesaid charge levelled against the petitioner, what can

be noted, however, is that, it is a matter which was in the knowledge of the authorities since June 2019, as a Committee was constituted to examine

the roster as also mentioned in para 7 of the affidavit-in-opposition filed by the University. Subsequently, after consideration at various level of the

University, the advertisement was issued on 06.08.2019.

Under the circumstances, this Court is of the view that it was not a matter which needed “immediate action†on the part of the Vice-Chancellor

by invoking the power conferred under Section 12 (3) of the Assam University Act and place the petitioner under suspension. In the opinion of this

Court, that aspect could have been brought to the notice of the Executive Council, which is the appointing authority and the competent authority for

placing the petitioner under suspension.

This Court of the view that, the aforesaid alleged irregularity committed by the petitioner was not something which needed “immediate action†to

be taken on the part of the Vice-Chancellor by placing the petitioner under suspension by invoking Section 12(3) of the Act.

Another ground on which the petitioner was placed under suspension was that though the petitioner had applied for the said post of Professor in

Hospitality and Tourism Management and was supposed to inform the Vice-Chancellor of his application for the said post, he did not do so. He was

also involved in processing of applications/issue a call letters and other confidential administrative works relating to selection of candidates which is

normally done by the Registrar.

The petitioner has vehemently denied such an allegation by stating that the application submitted by the petitioner for the said post in terms of the

aforesaid advertisement was duly endorsed by the employer/competent University authority on 05.09.2019 which can be seen from the application of

the petitioner, a copy of which has been annexed by the University authorities themselves in their affidavit-in-opposition. Thus, the University was in

the know of the application being filed by the petitioner. Assuming that the petitioner had applied without informing the University authorities, was it a

misconduct which required immediate action without being brought to the notice of the Executive Council? Perhaps not.

Without making any observation on the correctness or otherwise of the same, in the opinion of this Court, it was also not an irregularity which

warranted “immediate actionâ€​ by placing the petitioner under suspension within the purview of Section 12(3) of the Act. It could have been earlier

placed before the Executive Council for its consideration.

The University also alleged that the petitioner took reimbursement of Rs.50595/- by submitting fake computer generated bills and payment

receipts, which amounts to financial impropriety in violation of GFR 2017 and GFR 155.

According to the petitioner the aforesaid incident relates to a period in June 2019, when the World Environment Day was celebrated on the 5th of

June 2019. The memorandum of charges also indicates so.

In the opinion of this Court, the aforesaid irregularity allegedly committed by the petitioner could been also examined by the Executive Council and not

by the Vice-Chancellor by invoking his power to take “immediate actionâ€​ under Section 12 (3) of the Act.

As regards the other ground of suspension under which allegation of serious irregularities having financial implication in several proposals relating

to Engineering Sections have been levelled against the petitioner, this Court has also noted that this is a matter which relates to the period in March

2018/ February 2019.

In the opinion of this Court, it is also a matter which perhaps could have been placed before the Executive Council and is not a case which warranted

“immediate actionâ€​ to be taken by the Vice-Chancellor in October 2019 by invoking power under Section 12 of the Act.

Similarly the allegations of tempering of records/inaction against missing records/concealing of facts/distortion of facts as per observations made in

the enquiry are based on certain final report submitted on 18.02.2019. If there were certain adverse findings against the petitioner in the report

submitted on 18.02.2019, this Court fails to understand why the same was not brought to the notice of the Executive Council, and that it needed an

immediate action by way of suspension of the petitioner by the Vice-Chancellor.

In the opinion of this Court, it is also a matter which could have been placed before the Executive Council and was not a case which required

“immediate actionâ€​ to place the petitioner under suspension to be taken in October 2019 by invoking power under Section 12 of the Act.

As regards the allegation of corruption against the petitioner on the basis of certain Report of the Chief Vigilance Officer and the complaint filed

by “Save Assam University Association, Silcharâ€, and the recommendation to the Vice-Chancellor to constitute an enquiry committee to further

delve into the matter, these allegations have been vehemently denied by the petitioner. This Court also has noted that the recommendation of the CVO

was made on 10.07.2019.

In the opinion of this Court, this was also not an issue which called for “immediate action†on the part of the Vice-Chancellor to place the

petitioner under suspension by invoking power under Section 12 (3) of the Act. The matter could have been placed before the Executive Council and

for its consideration.

There is also the allegation that the petitioner had violated Statute 5(4) of the University when the petitioner informed the Vice-Chancellor by email

that he had given charge of the office of the Registrar to one Dr. Suprabir Dutta Roy which amounts to encroaching upon the power of the Vice-

Chancellor to make such an arrangement.

As regards this allegation, the petitioner has explained that he had proposed to the Vice-Chancellor, in the light of past conventions, and it was for the

Vice-Chancellor to accept it or not. The petitioner contends that the said proposal of the petitioner was also never rejected by the Vice-Chancellor and

as such the question of violation of Statute 5(4) does not arise.

As regards this issue, this Court after examining the materials on record finds that no official order had been actually issued by the petitioner

appointing Dr. Suprabir Dutta as the Registrar-in-charge. Mere writing in his email to the Vice-Chancellor informing that Dr. Suprabir Dutta will act

as the Registrar-in-charge during the absence the petitioner cannot be construed to be an appointment order issued by the Registrar appointing the said

Dr. Suprabir Dutta as the Registrar- in-charge. No formal order was issued by the petitioner. Under the circumstances, this Court is not satisfied that

this amounts to violation of Statute 5(4) and it cannot be a ground for invoking Section 12(3) of the Act by the Vice-Chancellor.

Another ground for which the petitioner has been suspended is the allegation that the petitioner had made several communications to the Ministry

without approval of the Vice-Chancellor by requesting the Ministry to direct the Vice-Chancellor to take punitive action against his officials which

tantamounts to unauthorised communication and insubordination and in that regard the University had referred to the letter dated 26.04.2016.

This Court also fails to understand how this communication to the Ministry made in the month of April 2016 would warrant “immediate action†by

placing the petitioner under suspension on the part of the Vice-Chancellor to invoke power under Section 12(5) of the Act.

This Court finds force with the submission made by the petitioner that it is a stale matter vis a vis requirement to take ‘immediate action†as

contemplated under Section 12(3) of the Act.

Another ground of suspension is the allegation of dereliction of duties by the petitioner. It has been alleged that Assam University Students Union

went on agitation from 27.09. 2019 by locking the office of the Vice-Chancellor and the chamber of the Registrar and it was expected of the Registrar

as the administrative head of the University to take appropriate steps to resolve the matter with the Students Union and ensure that the office of the

Vice-Chancellor and chamber of the Registrar are unlocked at the earliest so that the normal working of the University could resume. However, the

Registrar made no efforts to end the same and proceeded with his pre-scheduled program of availing personal leave and LTC thereby leaving the

University in uncertain condition.

The petitioner has vehemently denied this allegation by contending that before he left the University on LTC, he had sent an email to the Vice-

Chancellor on 29.09.2019 seeking directions from the Vice-Chancellor to deal with the situation. The petitioner claims that, however, there was no

response and he did not receive any instruction or guidance from the Vice-Chancellor in this regard.

As regards this issue, this Court would like to observe that the petitioner had proceeded on leave as per the LTC sanctioned in advance by the

University authorities and as such his departure from the University cannot be said to be unauthorised. The University authorities were in the

knowledge of such an LTC being already sanctioned to the petitioner earlier. Assuming that the presence of the petitioner was highly necessary at the

relevant time, nothing prevented the University authorities to recall such LTC which was sanctioned earlier and cancel the same and direct the

petitioner to return and remain in station to deal with the situation emerging in the University.

However, the University authorities did not deem it fit to cancel such LTC and direct the petitioner to return and remain in the University. Since the

petitioner had proceeded on the basis of an authorised sanctioned LTC, and no specific direction was issued by the University to cancel his LTC and

to remain in station, no lapses could be attributed to the petitioner for leaving the University.

Under the circumstances, this Court is of the view that it would be improper for the University authorities to place the petitioner under suspension on

the ground of dereliction of duties is alleged. Hence, the occasion to invoke the power under Section 12(3) of the Act by the Vice-Chancellor did not

arise.

It has been also alleged that the petitioner in the capacity of the Register had issued advertisements for non-teaching staff vide Employment

Notification No. 4/2017 dated 09.08.2017 but did not complete the recruitment process within the stipulated time and this was not brought to the notice

of the Vice-Chancellor thus causing unnecessary expenses to the University by way of publication in national dailies and causing inconvenience to the

public.

This Court also fails to understand how certain allegedly negligent act on the part of the petitioner which occurred in 2017 would be the basis for

invoking the power of the Vice-Chancellor under Section 12 (3) of the Act requiring “immediate actionâ€​.

There is also allegation that there are numerous instances attributable to the petitioner because of which the University had to face embarrassing

situations to regulatory bodies like the UGC/MHRD. However, in absence of particular details either in the affidavit-in-opposition or in the

memorandum of charges framed against the petitioner, nothing can be made out justifying invoking of power under Section 12(3) of the Act.

For the reasons discussed above, this Court would hold that though the Vice-Chancellor, even if he is not the appointing authority or the discipline

authority, and as such does not have the power to suspend an employee (other than a teacher of a member of the academic staff), he can place any

employee of the University under suspension, by invoking the power conferred under Section 12(3) of the Act, if such act of suspension is immediately

required to be taken. Such exercise of power has to be by way of “immediate action†required to be taken. As a corollary, if such act to place an

employee of the University under suspension is not immediately required to be taken, the aforesaid power under Section 12(3) cannot be invoked. The

requirement to take “immediate actionâ€​ is sine qua non to the exercise of power under Section 12(3) of the Act.

After having examined the circumstances in which the said power was invoked by the Vice-Chancellor as discussed above, this Court has come

to the conclusion that these situations referred to above were not such that warranted “immediate action†to place the petitioner under suspension

by the Vice-Chancellor by invoking the power under Section 12(3) of the Act.

This Court would hold that issuance of the impugned order dated 04.10.2019 for placing the petitioner under suspension cannot be considered to be an

“immediate action†required to be taken under the circumstances by the Vice-Chancellor within the ambit of Section 12(3) of the Act and hence,

the same is declared illegal.

As this Court has held the suspension order dated 04.10.2019 to be illegal on the aforesaid ground, this Court is not considering other grounds,

including mala fide etc. raised by the petitioner in assailing this suspension order.

Since the very initial act of placing the petitioner under suspension by the impugned order has been found to be illegal, subsequent approval by the

Executive Council of the same order on the report submitted by the Vice-Chancellor would be of no consequence.

This Court has been informed that a Review Committee constituted for the purpose of the reviewing the suspension order had already

recommended on 26.12.2019 that the suspension of the petitioner be extended till the enquiry is over and facts are unfolded and the Vice-Chancellor,

accordingly, extended the suspension period by another 90 days vide order dated 31.12.2019.

A perusal of the report of the Review Committee, a copy of which has been made available to this Court, indicates that the Committee took into

account that the suspension order was issued under Rule 10(1) of the CCS(CCA) Rules, 1965 and the proceeded to make its recommendation. There

is no reference to other provisions of the Act and Statute, thus the Review Committee did not consider these. As already discussed above, this Court

has already held that the Vice- Chancellor does not have the power to suspend the Registrar under CCS(CCA) Rules, 1965.

This Court is thus inclined not to accept the said recommendation of the Review Committee to be valid as the very initial suspension order has been

found to be invalid by this Court.

In the result, this Court holds that the initial suspension order dated 04.10.2019 and the subsequent orders to extend the period of suspension are

invalid, and as such the petitioner shall be deemed to be not under suspension.

However, this Court would like to clarify that since the initial order of suspension has been found to be invalid on the ground that the same was issued

by an incompetent authority dehors jurisdiction, nothing prevents the competent authority to issue appropriate orders in accordance with law.

This Court, however, would like to make an observation which tends to support the contention of the petitioner that the placing the petitioner under

suspension was done post haste.

The file dealing with the suspension of the petitioner was produced before this Court. As per aforesaid file, it appears that on 03.10.2019 the Vice

Chancellor had proposed to place the petitioner under suspension in order to have a free and fair enquiry as regards various irregularities allegedly

committed by the petitioner referred to above, and the file was then sent to the Registrar-in-charge to prepare an order as per rules. The Registrar-in-

charge, accordingly, as directed prepared the necessary suspension order on 04.10.2019 and the same was issued on the same day.

What has struck this Court is that when the Vice Chancellor sent the file to the Registrar-in-charge, it was on 03.10.2019, when the petitioner was not

yet suspended and as such the question of appointing the Registrar-in-charge when the file was sent on 03.10.2019 could not have arisen.

What the file indicates is that on 03.10.2019 someone seems to have been already functioning as the Registrar-in-charge, to whom the Vice-

Chancellor sent the file, which in the opinion of this Court cannot be considered to be valid. The Registrar-in- charge can be appointed only after the

regular Registrar is placed under suspension and not prior to it, which seems to have been done in the present case.

The file also does not indicate that at any point of time before the suspension order was issued, there was any consideration about the urgency of the

matter for placing the petitioner under suspension for the purpose of invoking Section 12(3) of the Act.

This takes this Court to the next issue raised in the second writ petition, in which the petitioner has assailed the memorandum of charges as illegal,

being motivated, baseless and mala fide.

The memorandum of charges has been already referred to in detail and as such, it may not be necessary to recapitulate the charges in detail and

accordingly the same would be referred to only to the extent relevant.

As far as the correctness or otherwise of the allegations made against the petitioner, as contained in the memorandum of charges, except for the

observations made and conclusions arrived at by this Court above while deciding the issue of the validity of the suspension order, this Court does not

deem it appropriate to decide the same. This Court is of the view that as to whether these charges levelled against the petitioner are valid or not or

whether these were motivated not, and whether these were issued for collateral purposes, or whether such charges are stale and without any basis,

need not be decided in this proceeding.

This Court is refraining from making any observation or decision on merit on these contentious issues at this stage, for the reason that it is still open to

the petitioner to question the validity or sustainability of the same by filing his written statement/defence statement in this regard, and raise all the

issues including mala fide, before the discipline authority proceeds with the departmental enquiry.

If the discipline authority upon consideration of the written statement/defence statement that may be submitted by the petitioner takes the view that it

may not serve any purpose to proceed with the departmental enquiry as regards any or all of the charges, the disciplinary authority can accordingly

close the departmental proceeding against the petitioner.

It is not an inexorable or inflexible rule that merely because the discipline authority had decided to initiate a departmental proceedings and framed the

charges, the discipline authority has to proceed with the departmental enquiry irrespective of the response/reply submitted by the delinquent officer to

the charges levelled against him.

A duty is cast upon the disciplinary authority to consider without any predetermined mind to consider the response/reply furnished by the delinquent

officer and to decide as to whether to proceed with the departmental proceeding or not, in the light of the response/reply furnished by the delinquent

officer. In the event, the discipline authority is satisfied with the response/reply furnished by the delinquent officer, the authority may not proceed with

the enquiry as otherwise, it would amount to harassment to proceed with the departmental enquiry for the sake of it.

This Court holds so, in view of the fact that, a departmental proceeding has certain deleterious effect on the service of an employee. It certainly casts

a shadow over the performance of the employee concerned. Till any such departmental proceeding is completed and the charged officer cleared of

the same, certain service benefits can be withheld. For example, if any departmental proceeding is continuing or pending, promotion is denied even to a

meritorious candidate by keeping his case under sealed cover. Though once the employee proceeded under the departmental enquiry is cleared of the

charges and given the benefits, in the meantime he may have suffered injuries which may be adequately compensated. It is for this reason that the

inquiry is expected to be completed expeditiously. Rule 15 of the CCS (CCA) Rules, 1965 provides for completion of the inquiry within a period of six

months.

It is, therefore, incumbent upon the discipline authority to arrive at a decision upon consideration of the reply/response of the delinquent employee that

the department enquiry needs to be proceeded. While doing so, the discipline authority is expected to keep all aspects in mind and specifically deal

with issues regarding mala fide, delay, latches on the part of the authority also, that may be raised by the petitioner before proceeding with the

departmental enquiry.

In this regard, this Court would like to refer to the decisions cited by the learned Senior Counsel appearing for the University.

In Union of India and another Vs. Ashok Kacker, 1995 Supp (1) SCC 180, the Hon’ble Supreme Court did not approve the order of the Central

Administrative Tribunal in quashing the charge-sheet on initiating the departmental enquiry before the delinquent even had submitted his reply to the

charge-sheet and rushing to the Central Administrative Tribunal.

It was accordingly, held as follows:

“4. Admittedly, the respondent has not yet submitted his reply to the charge-sheet and the respondent rushed to the Central Administrative Tribunal

merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal entertained the respondent’s application at that

premature stage and quashed the charge-sheet issued during the pendency of the matter before the Tribunal on a ground which even the learned

counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points

available to him including those which are now urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at

which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt

is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon……………………………………â€​

(emphasis added)

It was observed that the Tribunal ought not have entertained an application for quashing the charge-sheet at the stage of furnishing of charges and

appropriate course to be adopted is to file reply to the charge-sheet and invite the decision of the discipline authority thereon. The Hon’ble

Supreme Court also emphasised the fact that the charged employee would have all the opportunities to raise the issues before the disciplinary

authority.

Ld. Senior Counsel for the University also cited the decision in Secretary, Ministry of Defence and others vs. Prabhash Chandra Mirdha, (2012 )

11 SCC 565, in support of his contention that the writ application will not lie against a charge-sheet or the show cause notice for the reason that it does

not give rise to any cause of action. It was held that it does not amount to an adverse order which affects the right of any party unless the same has

been issued by a person having no jurisdiction/competence to do so and it is only when the final order imposing the punishment or otherwise adversely

affecting the parties passed, it may have advanced and cause of action . Thus, the charge-sheet or so cause notice in disciplinary proceeding should

not ordinarily be quashed by the Court. It was held that,

“10. Ordinarily a writ application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of

action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no

jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is

only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action.

Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the court. ………… ………… ……

…… …… …… …………………………………………………….

In State of Orissa v. Sangram Keshari Misra (2010) 13 SCC 311 (SCC pp. 315-16, para 10) this Court held that normally a charge-sheet is not

quashed prior to the conducting of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that to determine

correctness or truth of the charge is the function of the disciplinary authority. (See also Union of India v. Upendra Singh (1994) 3 SCC 357.)

Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not

adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the

disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to

deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be

concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to

be taken into consideration while quashing the proceedings.â€​

On the other hand, Learned Counsel for the petitioner relying on the decision in State of Punjab vs. V K Khanna and others, (2001) 2 SCC 330

submits that in the event the there is an element of malice or mala fide, motive involved in the matter of issue charge-sheet or the concerned authority

so biased that the enquiry would be a mere farcical show and conclusions are well-known, in that event law courts are otherwise justified in interfering

at the earliest days so as to avoid harassment and humiliation of a public service.

It was thus held as follows:

“33. While it is true that justifiability of the charges at the stage of initiating a disciplinary proceeding cannot possibly be delved into by any court

pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a

charge-sheet or the authority concerned is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in

that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is

not a question of shielding any misdeed that the Court would be anxious to do, it is the due process of law which should permeate in the society and in

the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court, in the contextual

facts, has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why

this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings.â€​

In the opinion of this Court, there is no contradiction between the aforesaid apparently two contrasting legal positions.

In Secy, Ministry of Defence (supra), the Hon’ble Supreme Court while laying down general proposition of law, held that “ordinarily†a writ

application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action and it does not

amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do

so. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the Court, and further made the

observation that in case the delinquent employee has any grievance in respect of the charge-sheet, he must raise the issue by filing a representation

and wait for the decision of the disciplinary authority thereon. It was thus observed as follows:

“8. The law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the

charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge-sheet

is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the

court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the

facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance…………â€​

It may be mentioned that the aforesaid decision in Secretary, Ministry of Defence (supra) was rendered in the context of a challenge made on the

issuance of the charge memo on the ground that it was issued by an authority not competent to do so, being subordinate to his appointing authority.

The issue of mala fide, ulterior motive in issuing the charge memo was not raised in the said case and as such issue never came up for consideration

before the Supreme Court and in that context, the aforesaid observations were made by the Hon’ble Supreme Court.

This Court is, accordingly, of the view that while ordinarily, a writ petition would not lie against a charge-sheet/show cause notice for the reason that it

does not give rise to any cause of action as held by the Hon’ble Supreme Court in Secretary, Ministry of Defence (supra), a writ would lie, if mala

fide is alleged and established, for such mala fide act would vitiate the entire proceeding as held in the case of State of Punjab vs. V K Khanna and

others (supra).

However, it is also to be noted that merely alleging mala fide or ill motive in an application would not suffice. Detail particulars of the acts which

constitute mala fide as well as the persons having ill will against the person alleging mala fide are to be spelt out in the application and the motive

behind such mala fide action.

In this regard, it may be apposite to refer to the decision of the Hon’ble Supreme Court in State of Punjab v. Chaman Lal Goyal, (1995) 2 SCC

570, wherein it was held as follows:

 “8.……………Now coming to the charge of mala fides also, it must be stated that the said charge was made in a vague manner in the writ

petition. It was not specified which officer was ill-disposed towards the respondent and how and in what manner did he manage to see that the

charges are served upon the respondent when the respondent’s case was to come up for consideration for promotion. The appellants say that the

respondent’s case was not to come up for consideration for promotion in the year 1992 at all â€" not even in 1993. It is also stated by the learned

counsel for the appellants that pursuant to the impugned order, the respondent’s case was considered by the DPC but it found him not fit for

promotion. Be that as it may, in the absence of any clear allegation against any particular official and in the absence of impleading such person eo

nomine so as to enable him to answer the charge against him, the charge of mala fides cannot be sustained………………….â€​

It may be noted that the burden of establishing mala fide lies very heavily on the person who alleges and the person has to establish malus animus

also with detail particulars [See Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi, (1987) 1 SCC 227 ].

It may be also noted that in Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133 it was observed that,

“A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use

of a power for an “alienâ€​ purpose other than the one for which the power is conferred is mala fide use of that power.â€​

It was also observed in State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 that,

“50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be

said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in

good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or

contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some

ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and

(ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.

The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is

not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the

action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand.

In the backdrop of the above legal position, this Court would proceed to examine the issue at hand.

As mentioned above, the petitioner alleged that the departmental proceeding initiated is arbitrary, illegal, perverse and had been initiated mala-fide.

It has been contended that the petitioner had earlier approached this Court challenging the suspension order by filing a writ petition, namely the

WP(C) No. 7677 of 2019 and this Court passed an order on 23.10.2019 directing maintaining status quo with regard to the order of suspension.

However, in spite of the direction for maintaining status quo with regard to the order of suspension, the authorities proceeded to issue the

memorandum of charges, which according to the petitioner is against the interim order of this Court, and is also blatantly perverse and mala fide.

As regards this contention of the petitioner, this Court would like to observe that issuance of suspension order and furnishing of memorandum of

charges, though are related, are independent actions.

A departmental proceeding may be held against an employee without placing him under suspension. Merely because the disciplinary authority has

decided to proceed against an employee with the disciplinary proceeding, it does not necessarily mean that the charged employee has to be suspended.

Merely because the discipline authority has the power to suspend an employee against whom any discipline proceeding is contemplated or is going on,

it is not necessary that the employee has to be placed under suspension. Placing the employee under suspension is merely an incidental part of the

discipline proceeding, which decision has to be independently taken in interest of smooth functioning of the discipline proceeding after taking into

account several factors.

It was held in by the Hon’ble Supreme Court in State of Orissa v. Bimal Kumar Mohanty, (1994) 4 SCC 126 as follows:

“13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or

contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the

order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the

nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or

disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid

action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the

alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own

facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to

discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or

to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even

pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the

witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each

case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the

continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is

actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The

authority also should keep in mind public interest of the impact of the delinquent’s continuance in office while facing departmental inquiry or trial

of a criminal charge.â€​

The above being the legal provision, even if the order of suspension has been held to be invalid by this Court, it would have no consequence upon the

decision of the competent authority to proceed with the departmental enquiry. This decision of the disciplinary authority to proceed with the

departmental enquiry has to be independently examined by this Court when challenged, irrespective of the validity of the suspension order.

This takes to the second limb of the submission of the petitioner that the charges against the petitioner are baseless, arbitrary, perverse, motivated

and mala fide. To examine these issues, the Court has to refer to the various allegations made against the petitioner and his clarification to the same.

With regard to the various allegations made against the petitioner as contained in the memorandum of charges, the stand of the petitioner is as

follows.

(i) As regards the allegation of manipulation of roster for Professor in the University for personal benefit, it is the case of the petitioner that there was

no question of any manipulation of the roster point as the same was prepared by the recruitment cell with a committee under the chairmanship of one

Professor GP Pandey with external member Dr KL Khera and the said roster was approved by the Vice-Chancellor himself before issuing the

advertisement. It has been further contended that when the said advertisement was challenged in another petition being WP(C) No. 7077 of 2019, the

Standing Counsel for the University had submitted that there was no irregularity with regard to the reservation.

(ii) As regards the allegation that the petitioner took reimbursement of Rs.50595/- by submitting fake computer generated bills and payment receipts,

which amounts to financial impropriety in violation of GFR 2017 and GFR 155, it has been submitted that the matter pertains to the fencing of saplings

planted on World Environment Day on 05.06.2019 and the delay in levelling the charge is itself indicative of the malice in fact as well as in law. It has

been also submitted that the bill forwarded by the petitioner was duly scrutinised by the Finance Section of the University and was approved by the

Vice-Chancellor and if there were any irregularity, the Finance Section ought to have pointed out at the relevant time, which are not done. In any

event if there was any error, the same was procedural and cannot be construed as misconduct.

(iii) As regards the matter relating to Engineering Section, the petitioner contended that the tendering process was initiated in March, 2018 and

allegations were made after lapse of about one and half years thus, these are stale matters. Further, the petitioner was not part of the Tender

Evaluation Committee and not at all responsible for floating of tenders. In any event in all the enquiries held in that regard, there was not a single word

against the petitioner but the enquiry reports pointed out serious lapses by the Tender Evaluation Committee. However, the University authorities have

opted not to initiate any action against the Tender Relation Committee members.

It has been accordingly contended on behalf of the petitioner relying on the decision of the Ho’ble Supreme Court, in Bongaigaon Refinery & P.C.

Ltd vs. Girish Chandra Sarmah, (2007) 7 SCC 206, that the petitioner cannot be singled out and be made a scapegoat by leaving out others who were

responsible for the irregularities.

(iv) As regards the allegations based on report of the CVO and complaint made by one “Save Assam University Association, Silcharâ€, it has been

pointed by the CVO himself that it was an anonymous/ pseudonymous organisation, and that there are already guidelines to the effect that any such

anonymous/pseudonymous complaint ought not be entertained.

(v) As regards the charge that the petitioner did not inform University authorities about his submitting application for the post of Professor in

Hospitality and Tourism Management, it is been submitted that the same is wrong as his application was endorsed by the competent authority of the

University on 05.09.2019 and as such it was within the knowledge of the University authorities.

(vi) As regards the allegation that the petitioner had violated Statute 5(4) of the University by informing the Vice-Chancellor that he has given charge

of the office of the Registrar to Dr. Suprabir Dutta Roy which amounts to encroaching upon the power of the Vice-Chancellor to make such an

arrangement under Statute 5(4), the same has been already dealt with in detail by this Court.

(vii) The other allegations against the petitioner relating to making unauthorised communication to the Ministry as well as regarding the appointment of

the Registrar-in-charge while the petitioner was on LTC leave and absence of the petitioner during the agitation by the Students’ Union, have

been already discussed in detail above.

As regards the allegation of mala fide raised by the petitioner, this Court, however, has noted that though the petitioner has mentioned that the

Vice-Chancellor and the Registrar-in-charge are biased towards the petitioner and they want to somehow hamper the career and future prospects of

the petitioner, the reason for such ill feeling and ill will against the petitioner has not be adequately highlighted to warrant interference at this stage.

What motivated the Vice-Chancellor and the Registrar-in- charge to act with mala fide against the petitioner has not been discernibly demonstrated in

the pleadings. Though it may be possible that what actually motivated the Vice-Chancellor and the Registrar-in-charge to act against the petitioner

could not be revealed, yet, there must be certain indicators why they were acting against the petitioner, which are not forthcoming in the pleadings.

Under the facts and circumstances and in the light of the pleadings discussed above, this Court, in exercise of the power of judicial review, with

limited scope for assaying, is not inclined to entertain the said plea of mala fide, motivated actions etc. raised by the petitioner at this stage in the

present proceeding, as this cannot be done without a proper appreciation of the facts involved, most of which are disputed and would require to be

proved. All the allegations against the petitioner need to be proved by adducing credible evidences in that regard and the petitioner would have right to

discredit the same and adduce his own evidences to establish his claim. As such, this Court is not inclined to undertake this exercise to examine the

allegation of mala fide at this stage.

However, this reluctance on the part of the Court to decide in this proceeding that the actions of the University authorities are mala fide or motivated

or arbitrary or not, will not preclude the petitioner from raising this issue before the competent authority by filing his detail reply/response to the

memorandum of charges, and the disciplinary authority shall deal with this issue of mala fide, and action being motivated with vindictiveness, without

being swayed by the fact that this Court has declined to examine this issue in this proceeding.

The competent authority shall accordingly decide on this issue independently, based on the materials which may be relied upon by the petitioner.

Accordingly, for the reasons discussed above, this Court is not inclined to interfere with the memorandum of charges framed against the petitioner

except for the Charges no. 6, 7 and 8 in Annexure II, which this Court has felt to be improper and unsustainable, as discussed above.

The petitioner would thus be at liberty to file his detail response and raise all the permissible objections to the same, and the disciplinary authority is

required to pass a speaking order as regards these objections before proceeding with the departmental enquiry, in terms of the observations and

directions made above.

In any event, considering the nature of allegations as contained in the memorandum of charges, the number of witnesses and documents sought to

be relied upon, even if the authorities decide to proceed with the departmental proceeding, the same should be concluded as expeditiously as possible

within the statutory period provided under the CCS(CCA) Rules, 1965, for which the petitioner shall fully cooperate with the University authorities.

In the result, for the reasons discussed above, the first writ petition, WP(C) No. 189/2020 is allowed by setting aside the impugned suspension

order dated 04.10.2019. The second writ petition, the WP (C) No. 7677 of 2019 is disposed of in terms of the observations and directions mentioned

above.