Dr.Ashish Rastogi VsGuru Ghasidas Central University

This writ petition is directed against the order dated 29.2.2012 (Annexure P­1) by which the petitioner has been removed by respondent No.3 from service on the ground of misconduct having been found proved against him.

The petitioner was appointed as Lecturer (Selection Grade) in the Department of Computer Science and Information Technology of the respondent University. It is alleged that on 19.5.2010 the petitioner entered into examination center and examination control room unauthorizedly and thereby alleged to have caused interference in the performance of duties of the examination staff, for which he was served with the charge­sheet on 5.7.2010, to which he submitted his reply on 15.7.2010 and thereafter University witnesses were examined by the enquiry officer and on 16.12.2010 the enquiry officer submitted the report to the disciplinary authority and accordingly, the disciplinary authority issued notice to the petitioner on 10.1.2011 and the petitioner submitted his representation and thereafter on 14.2.2012 the Executive Council called its emergent meeting and authorized the Vice Chancellor to take a decision in the departmental proceedings held against the petitioner and thereafter on 29.2.2012, the Vice Chancellor passed the impugned order removing the petitioner from service, which has been called in question by way of this writ petition. Principally, two grounds have been raised in this writ petition. Firstly, the Executive Council is appointing authority of the petitioner and it could not have delegated the power to the Vice Chancellor for imposing the impugned penalty and secondly, the penalty of removal is commensurate to the misconduct allegedly found proved against him as the findings recorded by the enquiry officer are perverse to the record and the enquiry officer as well as the disciplinary authority did not follow the procedure prescribed in Rules 14 and 15 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter called as 'Rules of 1966') and as such, it is liable to be set aside.

Return has been filed by the respondents herein supporting the order of removal stating inter­alia that looking to the misconduct committed by the petitioner, which was found proved by the enquiry officer in enquiry report submitted to the disciplinary authority on 16.12.2010, the Executive Council in its meeting dated 14.2.2012 has rightly authorized the Vice Chancellor to take a decision in this matter and accordingly, the Vice Chancellor by its order dated 29.2.2012 has inflicted the penalty of removal from service to the petitioner, which is strictly in accordance with law and the writ petition is liable to be dismissed with cost(s).

Mr.R.S.Marhas, learned counsel appearing for the petitioner, would make two fold submissions as under:­

(i) That, the Executive Council is appointing authority of the petitioner and it could not have delegated the power to the Vice Chancellor for imposing major penalty. Statute 25(2) appended to the Central University Act, 2009 starts with non­ obstante clause. It would mean that even if the agreement of service or terms and conditions of service of the employees provided otherwise, only the Executive Council shall have the power to remove a teacher or a member of the academic staff or other employee on the ground of misconduct and order of removal by the Vice Chancellor is without jurisdiction and without authority of law, therefore, it is liable to be set aside.

(ii) That, penalty of removal imposed to the petitioner is commensurate with misconduct allegedly found proved against the petitioner and the findings recorded by the enquiry officer are perverse to the record as the enquiry officer as well as the disciplinary authority did not follow the procedure prescribed in Rules 14 and 15 of the Rules of 1966 and the only act of the petitioner is of having entered into examination control room and having allegedly talked in high pitch with examination supervisor, by no stretch the punishment of removal from service could have been inflicted and it would shock the conscience of the Court. Even otherwise, punishment of removal from service is disproportionate to the alleged misconduct that is found to be proved against the petitioner, which is even not supported by evidence on record and as such, the order of removal from service deserves to be set aside being perverse to record and arbitrary as well.

On the other hand, Mr.Ashish Shrivastava, learned Senior Counsel with Mr.Aman Pandey, learned counsel appearing for the respondents, would submit that the Executive Council in its meeting dated 14.2.2012 has authorized the Vice Chancellor being Chairman of the Executive Council to take action based on enquiry report submitted by the enquiry officer and accordingly, penalty of removal from service has been imposed upon the petitioner, which is strictly in accordance with law. He would further submit that action of the petitioner entering into examination center and examination control room was totally unauthorized and his further act of causing interference in performance of duty of the examination staff was extremely serious and therefore, punishment of removal from service awarded to the petitioner was strictly in accordance with law and as such, the writ petition is liable to be dismissed.

I have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

The question for consideration would be,

(i) Whether the Executive Council was well within its jurisdiction to delegate its power to impose any of punishment upon Vice Chancellor / respondent No.3 and that has rightly been exercised by the Vice Chancellor of the respondent University ?

and

(ii) Whether the order of punishment of removal from service of the petitioner is disproportionate to the misconduct found proved against him ?

For the sake of convenience, question No.2 is taken first for consideration. The petitioner at the relevant point of time was working as Lecturer (Selection Grade) in the Department of Computer Science and Information Technology in the respondent University since 20.9.1996. He was served with the charge­sheet on 5.7.2010 with an allegation that he entered into examination center and examination control room on 19.5.2010 and caused interference in performance of duty of the examination staff, which he replied and ultimately, the enquiry officer after due enquiry submitted charge­sheet on 16.12.2010 copy of which was served to the petitioner vide memo dated 10.1.2011.

Charge No.1 formulated against the petitioner states as under:­

In enquiry report, the enquiry officer has found first charge proved against the petitioner which states as under:­

It appears from finding of the enquiry officer firstly that the petitioner reached to the examination center after completion of examination and secondly that Dr.Saxena, who also involved in that process, has not been subjected to any disciplinary proceedings.

Charge No.2 states as under:­

The enquiry officer has recorded the following finding  on second charge:­

A careful perusal of finding of the enquiry officer qua charge No.2 would show that the petitioner did not interfere with the work of examination authority of sealing answer­sheets and further in the conclusion, a finding has clearly been recorded that the petitioner did not interfere with the work of sealing the answer­sheets and Dr.Amit Saxena, who was also involved, was not charge­sheeted and therefore, no finding can be given against him. As such, the enquiry officer has found charge No.2 partly proved, that he only talked in high pitch with the examination supervisor unnecessarily, but the finding of interference with sealing answer­sheets was not found proved against the petitioner. The said finding of the enquiry officer has been duly accepted by the disciplinary authority and after serving notice dated 10.1.2011, he was served with penalty of removal from service by order dated 29.2.2012 (Annexure P­1).

The question for consideration would be, the petitioner who has been found proved with charge No.1 i.e. he entered into examination center and examination control room unauthorizedly after completion of examination, but second charge of having interfered with sealing answer­ sheets has not been found proved, whether penalty of removal from service is appropriate penalty that has been imposed against the petitioner particularly when one other University officer Dr.Saxena who was also found involved in this process, has not been subjected to disciplinary proceedings by the respondent University for the reasons best known to them.

It is well settled law that imposition of appropriate penalty commensurate with misconduct found proved is job and province of the disciplinary authority and this Court under Article 226 of the Constitution of India ordinarily would not interfere with punishment so imposed unless the penalty inflicted shocks the conscience of the Court and even if the penalty is disproportionate to the misconduct found proved against the delinquent servant, the course open to this Court is to remit it to the disciplinary authority to pass appropriate penalty in view of the misconduct that has been found proved against the delinquent servant except in exceptional and rare cases.

Very recently, the Supreme Court in the matter of Union of India & Ors. v. Ex.Constable Ram Karan Civil Appeal No.6723 of 2021, decided on 11th November, 2021 while dealing with identical fact situation where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court has held that the scope of judicial review on the quantum of punishment is very limited and can be exercised only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct. It was observed as under:­

"23. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the Court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons."

In the instant case, admittedly and undisputedly, the misconduct (charge No.1) that has been found proved against the petitioner is that on 19.5.2010 he entered into examination center and examination control room unauthorizedly after completion of examination and further charge that has been proved is that he talked in high pitch with examination supervisor Dr.Hemlata Dewangan, but further charge that he prevented the examination authorities from sealing answer­sheets and other documents have not been found proved, but penalty of removal from service has been inflicted. Dr.Amit Saxena (other officer of the respondent University), who was also found involved in said misconduct by enquiry officer, was not charge­sheeted by the respondent University for the reasons best known to the University authorities.

In the considered opinion of this Court, only allegation of entering the examination center and examination control room that too after completion of examination has been found proved against the petitioner and further he has talked in high pitch with examination supervisor has also been found proved, but allegation of interfering with sealing of answer­sheets was not found proved, rather it was found untrue and the respondent University has deliberately and acting arbitrarily has not charge­ sheeted Dr.Amit Saxena despite the fact that he was also involved in the alleged misconduct and also found so by the enquiry officer, which creates doubt on bona fides of the respondent University acting only against one officer / petitioner and allowing to go scot­free the other delinquent officer.

The charge of interference with examination process of sealing of answer­sheets and documents have not been found proved against the petitioner, which has also not shown to have been disagreed by the disciplinary authority and that has been accepted by the disciplinary authority. Therefore, that finding of the enquiry officer has become final and thus, only charge that has been found proved against the petitioner is that he entered into examination center / examination control room unauthorizedly and having talked in high pitch with examination supervisor and for that, in the considered opinion of this Court, punishment of removal from service would be shockingly disproportionate particularly when the disciplinary authority has agreed with the finding of the enquiry officer that the petitioner has not interfered with examination process (sealing of examination paper and records) and particularly when the respondent University itself is guilty of protecting one of the co­delinquent officers Dr.Amit Saxena against whom in answer to charge No.1 also the enquiry officer has clearly held that his conduct is also suspicious. Furthermore, while concluding the enquiry report, the enquiry officer has clearly held that Dr.Amit Saxena was also undisputedly involved in this process, but he has not been charge­sheeted, which creates doubt on the bona fides of the respondent University in only proceeding departmentally against the petitioner leaving other officer to go unpunished. The respondent University being State within the meaning of Article 12 of the Constitution of India ought to have acted fairly and reasonably while instituting departmental inquiry for misconduct while charge­sheeting for the alleged misconduct.

In view of finding recorded in question No.2, I would deem it inexpedient to answer question No.1.

Therefore, the order of punishment of removal from service imposed upon the petitioner vide order dated 29.2.2012 (Annexure P­1) is liable to be set aside and instead thereof, he is imposed with minor penalty of stoppage of one increment with non­cumulative effect. This Court would have ordinarily remitted the matter to the competent authority for deciding the appropriate penalty, but considering the fact that the petitioner was charge­sheeted on 5.7.2010 and to give quietus to the dispute, I deem it appropriate to award appropriate minor penalty to the petitioner.

Accordingly, the impugned order dated 29.2.2012 (Annexure P­1) passed by respondent No.3 removing the petitioner from service is hereby quashed and instead thereof, he is hereby imposed minor penalty of stoppage of one increment with non­cumulative effect. Respondents No.1 to 3 are directed to reinstate the petitioner in service along with all consequential service benefits, forthwith.

The writ petition is allowed to the extent indicated hereinabove. No order as to cost(s).