M.L. Upadhyaya vs University of Calcutta

Shamsuddin Ahmed, J.—This appeal is directed against the judgment and order dated August 24, 1990, passed in-Civil Order No. 12874 (W) of 1987.

The Petitioner Appellant''s case is that he was appointed by the Syndicate of the University of Calcutta in November 1975 and joined this University on January 14, 1976. He held the post of Principal, University College of Law, and was also connected with important activities in imparting legal education both at the University and national level.

Consequent upon the supersession of the Calcutta University Syndicate in 1978, he became a member of the Calcutta University Council and continued as such Principal till 1973 when the Syndicate was constituted under the Calcutta University Act, 1979. He became one of the ex-officio member of the Syndicate in the capacity of Dean of Faculty of Law. The Petitioner had taken leave to attend Jadavpur University with effect from February 3, 1986. He held the lien in respect of his substantive appointment on the post. The Petitioner has stated in his writ application to make out a case that the authorities of University was prejudiced against him and was eager to take steps. Respondents Nos. 5 and 6 who are members of the Syndicate made certain allegations against the Appellant. Syndicate in its resolution dated November 13, 1984, at Item No. 31 of the agenda dated August 28, 1984, asked Respondents 5 and 6 to make specific complaints against the Faculty Council for Post-Graduate Studies in law. Such allegations were made and those were referred to the Pro-Vice-Chancellor, academic. The Petitioner has submitted his report to the Syndicate and on Item No. 7 of the meeting of the Syndicate dated November 5, 1985, a resolution was adopted. At that time, the Petitioner was out of Calcutta. The decision of the Syndicate was not communicated to the Petitioner. An euquiry committee was constituted consisting of Principal Amiya Bhusan Banerjee, Dr. Bhaskar Roy Chowdhury and Professor Jyoti Bhusan Banerjee. It was also resolved that Petitioner be requested to go on leave during the period of enquiry. After obtaining law officer''s opinion matter was again brought before the Syndicate being Item No. 4 of the Syndicate Agenda dated January 14, 1986. The Syndicate on February 18, 1986, resolved to suspend the Petitioner from the service with immediate effect. It was communicated to the Petitioner by the Registrar by his letter dated February 24, 1986, challenging this resolution, the Appellant moved a writ application being Civil Order No. 1499 (W) of 1986. Thereafter, in connection with the same, he filed another writ application being Company No. 14978 (W) of 1986. Both the writ applications were disposed of by order dated January 30, 1987. N.C. Mukherjee J., a retired Judge of this Court, was appointed as special enquiry, officer and was directed to enquire into the impugned charges. The University of Calcutta was granted liberty to issue a fresh charge-sheet to writ Petitioner within a period of 10 days from the date of communication of the order. Directions with regard to inspection of documents were also given. The special enquiry officer was given opportunity to go into the matter in its entirety.

In terms of the aforesaid order, Registrar issued a purported charge-sheet on February 2, 1987, to the Petitioner. An enquiry by the special enquiry officer was commenced. The Petitioner raised the preliminary objection contending that whether a proper charge-sheet had been framed against him. This objection was placed more than one. The Appellant also submitted the objection to the enquiry officer without prejudice to his rights and contentions. The enquiry officer in his Minute dated August 3, 1987, recorded -

I shall certainly consider the objection raised by Dr. M.L. Upadyaya. But I do not think that I should decide the matter piecemeal. I shall dispose of all the matter together.

Special enquiry officer submitted his report on September 15, 1987. The Petitioner had challenged the report by the instant writ application on several grounds which we will take up later.

The learned trial Judge by the order impugned has disposed of the writ application. The learned trial Judge noted that the enquiry report was challenged by the Appellant on various grounds. It was contended that the University was given an opportunity to issue a fresh charge-sheet. Registrar has served a charge-sheet which was neither framed nor approved by the Vice-Chancellor of the University. The entire proceedings were conducted in violation of principle of natural justice. It was also contended that the report of the enquiry officer was perverse and based on misappreciation of evidence on record. The University authority contended that the writ application was bad for non-joinder of necessary parties. It was contended that Syndicate of the University of Calcutta is a necessary party. The learned Judge observed that the charge-sheet pursuant to the order passed by the Court on January 31, 1986, was issued on February 2, 1987.

Accordingly, the date of issue of the charge-sheet was put on the copy of the charge-sheet. Accordingly, the learned trial Judge held that the Registrar did not issue a fresh charge-sheet and he had acted with its jurisdiction and competence to issue a fresh copy, of the charge-sheet, and such issue does not require the prior approval of the Vice-Chancellor as the charges were already framed and approved by the Syndicate. The Registrar has acted within his power. Accordingly, the learned trial Judge held that the charge-sheet does not suffer from any infirmity.

Miss Chaturbedy has seriously contended that there was no legal or proper charge-sheet which may form the basis of holding an enquiry. Therefore, she contended that the Registrar was not competent to frame charge-sheet; no charge-sheet was framed or approved by the University authorities which is competent to frame such charges and initiate the disciplinary proceedings. She submitted that the Syndicate never framed the charges or initiated disciplinary proceedings against Dr. Upadhyaya. Accordingly, the whole proceeding is without any basis, as no valid charge-sheet has ever been framed against the Appellant.

To appreciate the contention of Miss. Chaturbedy we have to look into the provisions of the Calcutta University Act, 1979, and the Calcutta University First Statutes, 1979. Section 3 of the Act of 1979 provides that the first Chancellor and the first Vice-Chancellor of the University and the first members of the Syndicate and the Senate and all persons who may hereafter become the Chancellor and the Vice-Chancellor of the University or a member of the Senate or the Syndicate, asserting as they continue to hold such office or membership was constituted a body corporate by the name of the University of Calcutta. University shall have perpetual succession and the common seal and shall sue and be sued by the name of the University of Calcutta. Section 4 details the powers of the University. Section 6 names the officers of the University. It appears that the Registrar is one of the officers of the University. Then by various sections, the powers of the Chancellor, Vice-Chancellor, Pro-Vice-Chancellor and Registrar has been dealt with. In Section 14 the power of the Registrar is that he shall be a whole-time officer of the University and shall be appointed by the Syndicate. He may resign his office by writing addressed to the Chancellor. His powers are given in Section 15 which lays down -

Subject to the supervision, direction and. general control of the Vice-Chancellor, the Registrer shall act as the Secretary of the Senate and also of the Syndicate and shall exercise such powers and perform such duties as may be prescribed or deligated to him by. or under the Act.

It appears that the Registrar is an officer of University of Calcutta. He is not a constituent part of the University of Calcutta. His powers are found in the prescribed rules or deligation made to him under the Act.

We have already noted that the Syndicate is a constituent part of the University of Calcutta. Its power and duties are dealt with in Section 22 of the said Act. Clause (IX) provides for appointment of teachers, officers and employees of the University of Calcutta and to fix their emoluments and define their duties and other terms and conditions of service in accordance with the statute, and to suspend, discharge or otherwise punish in accordance with this statute and the ranks of such teachers, officers and the employees. It clearly appears from it that the Syndicate is the appointing authority of the teachers. This has been asserted by the Petitioner which is not denied.

In this background the Court wanted to ascertain from the learned Advocates appearing for the University of Calcutta in regard to the authority which has framed the charges against the Appellant and also directed the University of Calcutta to produce the papers at various stages of the hearing. But no such papers were produced excepting some resolutions taken at the Syndicate meeting which, according to the learned Advocates for the University of Calcutta, is the basis on which a disciplinary proceeding was initiated against the Appellant. It appears from the resolution and Agenda No. 4 of the meeting dated January 14, 1986, that the second part of the resolution of the meeting dated December 10, 1985, Item No. 7 was reconsidered. The finding of the enquiry authority of the preliminary investigation and the law officer''s opinion was taken into acount and it was resolved that Professor M.L. Upadhyaya to be suspended from service with immediate effect, and the Registrar be advised to issue necessary order of suspension immediately. From this resolution it appears that the Appellant was suspended in contemplation of a disciplinary proceeding to be brought against him. The next resolution is Item No. 6(A) of the Agenda dated February 1988. It is being claimed that if there be any irregularity those have been regularized by this resolution. The resolution runs thus:

Resolved: (1) that the Syndicate approved the action taken by the Registrar as authorised in connection with disciplinary proceedings initiated against Dr. M.L. Uppadhya; (2) that the Syndicate also considers and accepts the finding of the enquiry held by special enquiry officer, Mr. Justice N.C. Mukherjee, appointed by the Hon''ble High Court and that Dr. M.L. Uppadhya be dismissed from the service; (3) that the opinion of the law officers be adopted or implemented as hereby awarded; (4) that the Registrar be authorised to make and issue necessary Letter of dismissal to Dr. M.L. Uppadhya in terms of the above decision of the Syndicate and to fake all other necessary steps in the matter; (5) that the resignation letter dated 21.12.87 of Dr. M.L. Uppadhya be not accepted in the facts and circumstances of the case.

On perusal of the judgment of the learned trial Judge it appears that the learned Judge has construed the objection raised by the Petitioner before the enquiry officer that the charge-sheet framed against him was not approved by the Syndicate or the Vice-Chancellor at any time, and accordingly, no valid enquiry can be held against him on the basis of such a charge-sheet. Learned Judge thought that the objection related to the date mentioned in charge-sheet. Accordingly, he held that the Registrar was directed to serve a copy of the charge-sheet already approved by the Syndicate, and accordingly, nothing is wrong only because the Registrar has referred to a copy of the same quoting the earlier date. It appears that the learned Judge has failed to appreciate the objection raised by the Petitioner before him as well as N.C. Mukherjee J., the enquiry officer, appointed by the Court. The objection of the Petitioner was that there was no valid charge-sheet which can form the basis of a proper disciplinary enquiry against him.

Miss Chaturbedy has repeatedly urged that in spite of this objection being raised before the special enquiry officer, N.C. Mukherjee J., he has not dealt with the same in his report. Learned trial Judge also noted that the objection only related to issue of the copy of the charge-sheet and the original charge as framed was delayed, approved by the Syndicate. We have already noted the resolution adopted by the Syndicate at its meeting held on February 19, 1988, at Item No. 6(A). It is approved that the action taken by the Registrar as authorised in connection with disciplinary proceedings initiated against Dr. M.L. Upadhyaya. It is being sought to argue that by this resolution every action taken by the Registrar including framing of charge-sheet and service of the same under his signature was approved by the Syndicate. We have already noted the provisions made by the Calcutta University Act, 1979, and the Calcutta University First Statutes, 1979, framed under the authority of the Act, shows that no regulations providing for disciplinary action against the teachers of University has yet been made. Accordingly, the whole disciplinary proceeding has to be initiated and regulated by the appointing authority, namely, the Syndicate of the University of Calcutta. There is no doubt that Syndicate never considered any charge-sheet framed against Dr. M.L. Upadhyaya. It only approved every action taken by the Registrar. It has not been specifically mentioned that the charge-sheet framed was approved. It is clear from the facts as disclosed earlier that this approval of the charge-sheet has been made only in the year 1988 and the report of the special enquiry officer, N.C. Mukherjee J., was submitted on September 15, 1987. It is therefore clear that every action taken earlier did not have the approval of the Syndicate is said to be retrospective effect. We have already indicated that it is the Syndicate which can initiate disciplinary proceedings against a teacher of the University. There is no evidence that such initiation was made by the Syndicate itself at any time. It has not also been shown before us that Vice-Chancellor of the University was ever aware of such a proceeding and was approved the same. Belated approval after the entire proceeding was over and the challenge was thrown by the Petitioner, the Syndicate adopted the resolution, as is submitted by Miss. Chatur-vedy, only to meet the grievance that he has made before the Court of law. It is absolutely mala fide. In the circumstances of the case, Miss. Chaturbedy has sufficient reason to make these submissions since the entire enquiry was held on the basis of a charge-sheet framed by the Registrar. The whole proceeding is not based on a properly reframed charge-sheet. It does not appear that Syndicate ever initiated any disciplinary proceeding against the writ Petitioner. It appears that the Syndicate has suspended the Petitioner on the basis of a report made by the committee. No paper has been produced before us in spite of repeated chances given to the learned Advocates appearing for the University. They are failed to produce papers excepting the resolutions as we have already noted.

Under the circumstances and in view of our observations as above, we hold the entire disciplinary proceedings against the Petitioner, Dr. M.L. Upadhyaya is illegal and void from the very beginning. Accordingly, the finding of the special enquiry oficer, N.C. Mukherjee J., and the order passed by the Syndicate on the basis of the same dismissing the Petitioner from the service are all not in accordance with law and is accordingly stands set aside.

In this connection, we may note that the Petitioner submitted resignation on December 21, 1987. This was rejected by Syndicate at its meeting held on February 9, 1988. It has been submitted that the writ Petitioner has not attained the age of superannuation. In that case he shall be entitled to reinstatement to his post within one month from date and he shall be entitled to his. usual pay and allowances under the Rules along with his arrear salaries and allowances, if any, except, of course, the amount which might have been paid to him as suspension allowances or otherwise. He will also be entitled to his retirement benefit.

In view of the fact that we have already held that the entire disciplinary proceedings taken against the writ Petitioner is bad, we do not propose to enter into the challenge thrown by the writ Petitioner in this appeal against the finding of the learned trial Judge on various heads framed against him and the decision arrived at by the learned special enquiry officer.

This appeal is allowed and the judgment and order impugned stands set aside. The report of the special enquiry officer in terms of the order passed by this Court, as well as the action taken by the Syndicate in accepting the report and dismissing the writ Petitioner from the service stands set aside. Order of suspension passed by the Syndicate also stands set aside. As a result, as we have already indicated above, the Petitioner will be entitled to benefits. In the circumstances of the case, we allow no cost.

S.P. Rajkhowa J.

I agree.