Prof. Archana Kesar vs University of Jammu

Mr. Janak Raj Kotwal, J. - Petitioner is a professor in the faculty of the University of Jammu (for short the University) and was acting as Head of

the Department of Dogri. She was also holding the additional charges of the post of the Principal, Institute of Music and Film Arts (IMFA) and the

Director, School of Visual and Performing Arts, Design and Architecture (SVAPADA).

Petitioner has filed this Writ petition under Article 226 of the Constitution of India read with Section 103 of -the Constitution of the Jammu and

Kashmir to seek quashing of an order issued by the Registrar of the University/respondent No. 2 vide No. Adm/TW/15/946-96 dated

16.02.2015 whereby petitioner has been relieved as Head of the Department of Dogri and respondent No. 5 has been nominated to act against

the said post. Petitioner also seeks quashing of another order issued by respondent No. 2 vide his No. Adm/TW/15/936-45 dated 16.02.2015

whereby she has been relieved of the charge of the Principal of IMFA and Director, SVAPADA and respondent No. 6 has been authorised to

function against these two posts. Besides, petitioner also seeks a direction to respondents to allow petitioner to perform aforementioned functions.

Heard. I have perused the record.

A few facts are required to be stated for disposal of this petition:

4(a). One Professor Shiv Dev Singh Manhas was appointed by the Controller of Examination of the University/respondent No. 3 to evaluate the

answer scripts of MA Dogri, C. No. 454, Semester-11, 2014 of Directorate of Distance Education. After completing the evaluation, Professor

Manhas handed over these answer scripts to the petitioner. According to the respondents, the answer scripts were handed over to the petitioner

by Prof. Manhas for passing them on to respondent No. 3. The petitioner vide her communication No. PGD/DG/14/531 dated 22.12.2014

(annexure-A), however, informed respondent No. 3 that after scrutiny of the answer scripts received from Prof. Manhas 'it has been observed that

at least three persons have evaluated the said answer scripts' and requested for a guidance whether the said answer scripts may be sent to him for

declaration of results or otherwise. This communication seems not to have attracted any response from respondent No. 3 till 30.12.2014 when

petitioner send another communication No. PGD/DG/14/547-48 dated 30.12.2014 (annexure-B) again requested respondent No. 3 to guide her

whether the said answer scripts may be sent to him for declaration of result or otherwise.

4(b). Petitioner received communication No. Eval/NP/15/1999-2002 dated 16.01.2015 from Assistant Registrar (Evl-NP) (annexure-C) under

the direction of the Vice Chancellor of the University asking her to send the pending answer scripts of MA Dogri, Course No. 454, Semester 2nd

(supra) with her detailed comments for further necessary action. In the meantime, the Jammu University Research Scholars Executive Association

(JURSEA) convened a press conference highlighting the aforesaid issue and demanding independent inquiry into the aforementioned matter.

4(c). On 12.02.2015, respondent No. 2 vide communication No. Adm/TW/15/905 dated 12.02.2015 while pointing out that the petitioner has

not submitted detailed comments as sought from her, sought clarification from her on the points as to what prompted her to scrutinize the

aforementioned answer scripts, how did she arrive at a conclusion that at least three persons have evaluated the said answer scripts, why the

information was shared with the Research Scholars and why did she not send her communications dated 22.12.2014 and 30.12.2014 under

confidential cover. Petitioner claims that she furnished her reply to this communication vide her No. PGD/DG/15/653 dated 13.02.2015. On

16.02.2015, respondent No. 2 issued the two orders impugned in this writ petition. Hence, this writ petition.

Petitioner assails the impugned orders on the ground that the same are illegal, arbitrary and violative of the principles of natural justice inasmuch

as the orders are punitive, stigmatic and visiting the petitioner with penal consequences and have been issued without providing opportunity of

being heard to her. Besides, the impugned orders have been issued by an authority, that is, respondent No. 2, not competent to issue such an

order as an order under statute 22 of Chapter III of the University Calendar can be issued only by the Vice Chancellor of the University. It is

alleged by the petitioner that she has been victimized for raising her voice against the serious illegality committed by Prof. Manhas, who has close

nexus with the higher authorities in the University and that she has been condemned unheard.

Respondents-1 to 4 have resisted the writ petition in their objections mainly on the strength of the Vice Chancellor's power under Statute 22 of

Chapter III of Volume-I of the University Statutes (for short Statute 22). In reference to petitioner's contention that impugned orders are stigmatic

and issued by incompetent authority, respondents have contended that the petitioner has been absolved of the temporary charges by the Vice

Chancellor in exercise of powers vested in him under Statute 22 in a routine manner purely in the interest of administration. The impugned orders,

therefore, it has been contended, are perfectly legal, justified and issued by a competent authority strictly in conformity with the University Statute

and cannot be held to be punitive, stigmatic or issued by incompetent authority. It is contended that Statute 22 empowers the Vice Chancellor of

the University to nominate a teacher of a Department to act as Head of the Department for such period as he may determine. The petitioner has no

right to continue as Head of the Department or Director of SVAPADA or Principal of IMFA for indefinite period. Nomination to act as Head of a

Department is additional responsibility given to a teacher of a Department for such a period as the Vice Chancellor may determine. It is thus,

contended that 'since all the three charges were purely temporary' in nature which the petitioner could have enjoyed as per the discretion of

competent authority, the petitioner was not required to be heard in person before absolving her of the said charges and petitioner has no case for

assailing the impugned orders on the basis of the principles of natural justice'.

Mr. Sunil Sethi, learned Senior Advocate, appearing for the petitioner, submitted that petitioner has been divested of the positions of the Head

of the Department, the Director and the Principal not in a routine manner but as punishment for her pointing out the irregularity committed by Prof.

Manhas and the press conference by the JURSEA without conducting any inquiry into the entire episode and giving her opportunity to explain her

position. Mr. Sethi argued that the impugned order relieving the petitioner from the post of the Head of the Department though said to have been

issued in exercise of power under Statute 22 is punitive and stigmatic to the petitioner, given the circumstances in which the order has been issued.

Likewise the other order is also stigmatic. Mr. Sethi relied upon Jarnail Singh v. State of Punjab, (1986) 3 SCC 277.

Per contra, Mr. W.S. Nargal, learned counsel for respondents 1 to 4 submitted that the orders impugned are purely routine orders whereby

petitioner has been relieved of the temporary additional charges. Mr. Nargal submitted that impugned orders have nothing to do with the episode

relating to the marking of the answer scripts as pointing out by the petitioner or the press conference by JURSEA and cannot be termed as

stigmatic or punitive. Mr. Nargal relied upon Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar, (2008) 2 SCC 479 and State and Haryana

and another v. Satyender Singh Rathore, (2005) 7 SCC 518.

The clear and categorical stand taken by the respondents 1 to 4 as noticed on reading the objections filed by them and as urged by Mr. Nargal

at Bar is that the impugned orders are independent of the episode relating to marking of the answer scripts by Prof. Manhas and the press

conference by the research scholars' body. Had it been true, the legality of the impugned orders would have been considered on the anvil of the

power of the Vice Chancellor to relieve a teacher of the charge of the Head of a Department or Additional charges of the posts like the Principal

of IMFA and Director SVAPADA and also on the basis of the contention that the impugned orders were not issued by a competent authority.

However, on reading the contemporaneous record produced on behalf of the respondents, stand taken by the respondents has not been found

correct as it emerges clearly that the impugned orders have been issued in sequel to the dispute relating to marking of the answer scripts by

Professor Manhas raised by the petitioner and the press conference by JURSEA.

Contemporaneous record is the only source of information for looking into the intent of an administrative or statutory decision and can be

examined by this court as per the law laid down by the Supreme Court in East Coast Railway v. Mahadev Appa Rao, AIR 2010 SC 2794 where

Their Lordships have observed:

There is no quarrel with the well settled proposition of law that an order passed by a public authority exercising administrative/executive or

statutory powers must be judged by the reason stated in the order or any record or contemporaneously maintained....

Mr. Nargal has produced the record contained on the personal file of the petitioner. Record on this file contains also the record relating to

petitioner's communication dated 22.12.2014 (supra), whereby she had conveyed her observation to respondent No. 3 that the aforementioned

answer scripts given for evaluation to Prof. Manhas had been evaluated by at least three persons and the proceedings pursuant thereto. As per the

relevant nothings in the record, the communication dated 22.1.2014 was taken cognizance on 02.01.2015, that is, eight days after it was sent by

the petitioner and two or three days after the second communication in this regard by the petitioner dated 30.12.2012. On the same day, decision

was taken to ask the petitioner to send the' answer scripts for declaration of result. There is nothing on record to show that this decision was

conveyed to the petitioner. Petitioner's letter dated 30.12.2014 was taken note of on 12.01.2015 and on the same day proposal was submitted for

asking the petitioner to send aforementioned answer scripts for declaration of the result as the students were pressing hard for the same. Pursuant

to this proposal, the Vice Chancellor on 14.01.2015 passed order for obtaining the answer scripts along with detailed comments of the HoD,

Dogri (petitioner). This order seems to have been followed by letter dated 16.01.2015 (supra) issued by the Assistant (Eval-NP) whereby the

petitioner was asked to send the answer scripts along with her detailed comments for the purpose of necessary action. As per the noting dated

06.02.2015, these answer scripts were sent by the petitioner on 19.01.2015. On 09.02.2015, after taking notice of the press conference held by

the JURSEA, a proposal came to be mooted for constituting a committee comprising of Prof. Vibhakar Mansotra and S. Mahajan to look into the

whole case. On the same day, this proposal got approval of the Vice Chancellor. This proposal, as it is relevant, is reproduced:

SO

The file has been called for. The u/signed looked into the case after press release of JURSEA also came into notice, and were of the opinion that a

committee be constituted to look into the whole case. The committee of Prof. Vibhakar Mansotra and Sh. S. Mahajan, JR(Exam) is proposed.

Sd. Sd. Sd. Sd

V/C Sd.

09.02.2015

The aforementioned Committee seems to have submitted its report on 10.02.2015 and the view taken was that the communications of the

petitioner dated 22.12.2014 and 30.12.2014 were not in tune with the evaluation done by the evaluator. On the same day the Registrar placed the

report of the Committee before the Vice Chancellor and the Vice Chancellor made following order:

After detailed discussion with senior faculty members namely, Prof. Arvind Jasrotia, Prof. Deshbandhu Gupta, Prof. Vibhakar Mansotra, it was

deemed proper that whole episode be examined by a Committee, particularly the misconduct of the three research scholars by organizing the press

conference on the basis of such a false information. Keeping in view all this, the present HoD Dogri is required to change and Prof. Posh Charak

be given the charge of HoD Dogri with immediate effect till further orders. However, immediately her comments be obtained. PI put up the draft

letter.

Registrar

Sd.

10.02.2015

(underlining by me)

Pursuant to the order of the Vice Chancellor, the Registrar issued letter No. Adm/TW/15/905 dated 12.02.2015 (supra) to the petitioner. This

letter in its substance reads:

How did you get access to the answer scripts and what prompted you to scrutinize the answer scripts.

How did you arrive at the conclusion that ""it has been observed that at least three persons have evaluated the said answer scripts.

The Research Scholars in their press conference have stated that ""on scrutiny of said answer scripts, the Head of the Department of Dogri

observed the same and immediately referred the matter to Controller of Examination on December 22, 2014........."", Why the said information was

shared with the Research Scholars.

Why you did not send the letters No.'s PGD/DG/14/531 dated 22.12.2014 & No. PGD/DG/14/547-48 dated 30.12.2014 under confidential

cover. ZYour point-wise reply must reach the undersigned latest by February 13, 2015

On 16.02.2015, the Registrar of the University placed a note before the Vice Chancellor pointing out that the response to letter dated

12.02.2015 was not received in the office of the Registrar up to 16.02.2015, 12.15 PM. Relevant portion of this note reads:

Till now i.e. 16.02.2015. 12.15 PM no response to letter No. Adm/TW/15/905 dated 12.02.2015 has been received in the office of the

Registrar.

Orders are solicited that whether directions at A' page 10 be implemented or not.

as enquired by the Vice-chancellor Prof. Kesar is also holding the charge of:

Director, School of Visual and Performing Arts, Design and Architecture (SVAPADA)

Principal, Institute of Music and Fine Arts (IMFA)

Sd.

16.02.2015

For handiness it be noted that the decision said to have been taken at ""A' page 10"" is the one contained in Vice Chancellor's order dated

10.02.2015 (para 12 above).

The notice of the Registrar got approval of the Vice Chancellor on 16.02.2015 itself and thus came to be issued the impugned orders.

Having regard to the stand taken by respondent No. 1, it needs to be stated that in judicial proceedings a statutory/executive authority is not

expected to defend, justify or explain an order passed by him on the grounds other than those available from the order itself or the connected

record and not to set up a contrary' case in its pleading. Reference in this regard is made to Hindustan Petroleum Corporation Ltd. v Darius

Shapur Chenai, AIR 2005 SC 3520, where their Lordships have held:

28 ....When an order is passed by a statutory authority, the same must be supported either on the reasons stated herein or the grounds available

there for in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the

affidavit dehors the order or for that matter dehors the record.

On reading the aforementioned notings/orders in the record produced on behalf of the respondents, there is no scope for entertaining any

doubt that impugned orders dated 16.02.2015 might be a routine administrative decision of the Vice Chancellor. On the other hand, it emerges

explicitly and decisively that the said orders had been issued pursuant to and consequent upon the communication dated 16.12.2015 and

31.12.2015 addressed by the petitioner to the respondent No. 3. Aggravating factor had been the press conference by JURSEA that gave rise to

suspicion in the minds of the University authorities that information contained in the said communications was shared by the petitioner with the

Research Scholars.

It is observed that respondents-1 to 4 in their reply to this writ petition have not disclosed the real picture and have projected an unreal story

that issue of the impugned orders has nothing to do with the aforementioned two communications written by the petitioner or the press conference

by the JURSEA. The matter calls for a serious note given that the reply filed on behalf of respondents is supported by an affidavit sworn in by none

else than the Registrar of the University who all along was associated with the background proceedings leading to issue of the impugned orders. By

not disclosing the true picture, this Court has been burdened with the task of examining the entire record produced before the Court. Respondents

were expected to put forth the real picture and to support the impugned orders on the basis of the background in which they have been passed.

Be that as it may, the next questions arising for consideration are whether the impugned orders are stigmatic and punitive and whether the said

orders have been passed in violation the principles of natural justice by not providing opportunity of hearing to the petitioner.

It may be restated briefly, though at the cost of repetition, that after the press conference by the JURSEA, the decision to constitute the

Committee comprising of Prof. Vibhakar Mansotra and S. Mahajan to look into the whole case was taken on 09.02.2015. This Committee

submitted its report on 10.02.2015, taking the view' that communications of the petitioner dated 12.12.2014 and 30.12.2014 were not in tune

with evaluation done by the evaluator and that the Committee does not observe any glaring aspects with regard to evaluation done. On the same

day this report was placed before the Vice Chancellor and the Vice Chancellor took the decision that 'Keeping in view' all this, the present HoD

Dogri is required to change'. However, by the same order the Vice Chancellor had also directed for immediately obtaining the ‘comments' of the

petitioner. The order passed by the Vice Chancellor on 10.02.2015 does not, however, make it clear whether the decision to change the Head of

the Department of Dogri was subject to the 'comments' of the petitioner or not. Nonetheless, it is clear from the record that formal order for

relieving the petitioner from the post of the Head of the Department of Dogri was not issued and vide letter No. Adm/TW/15/905 dated

12.02.2015 issued by the Registrar, Prof. Manoj K. Dhar, clarification was sought from the petitioner on the points delineated therein (supra).

Important turn in the whole gamut of things took place on 16.02.2015 when the Registrar placed a note before the Vice Chancellor pointing

out that response to letter dated 12.02.2015 (supra) was not received in his office up to 16.02.2015, 12:15 PM. He also sought direction for

implementing the order passed by the Vice Chancellor on 10.02.2015 and also informed the Vice Chancellor that petitioner was holding additional

changes of Director, SVAPADA and Principal, IMFA pursuant to this note. This note got positive response from the Vice Chancellor and on the

same day, the impugned orders relieving the petitioner from the post of Head of the Department of Dogri and the two additional charges came to

be issued by the Registrar.

Plea taken by the petitioner in para No. 11 of the writ petition clearly is that she had submitted her reply to the letter dated 12.02.2015 (supra)

vide her communication No. PGD/DG/15/653 dated 13.02.2015. She has produced copy of her reply as annexure-G to the writ petition. In this

reply clarification on the four points sought from her vide letter dated 12.02.2015 was given by the petitioner.

Respondents in their reply to para 11 of the writ petition have not denied the receipt of petitioner's reply dated 13.02.2015 (supra). It,is not

the respondents' case that the said reply was not received up till 16.02.2015, 12:15 PM as was reported by the Registrar in his note dated

16.02.2015 submitted to the Vice Chancellor. Plea of the respondents, however, is that 'the response of the petitioner to the quaries raised is not

straight and is doubtful'.

The response dated 13.02.2015 (supra) has been found lying on the record produced on behalf of the respondents. Record also contains a

note showing that the reply was received in the office of the Registrar on 13.02.2015 and as per the marking, seemingly made by the Registrar,

same, was produced before the Registrar on 23.02.2015.

What is thus clear is that clarification sought from the petitioner vide Registrar's communication dated 12.02.2015 was submitted by her and

received in the office of Registrar on 13.02.2015. The Registrar, therefore, was not correct in saying positively in his note dated 16.12.2015 that

response to letter dated 12.02.2015 was not received up to 16.02.2015, 12:15 PM. It is not explained in the reply filed by respondents 1 to 4 as

to how the reply of the petitioner received in the office of the Registrar on 13.02.2015 had not come to the notice of the Registrar. Whether there

was a plausible reason for the Registrar for being ignorant about petitioner's reply up to 16.02.2015 is a question which should have been

explained by the respondents in their reply but unfortunately respondents while replying para 11 of the writ petition have avoided this aspect. Fact

of the matter thus remains is that the Registrar on 16.02.2015 placed a note before the Vice Chancellor which was incorrect to the extent that

petitioner's response to letter dated 12.02.2015 was not received up to 16.02.2015. Why such a report was made is a question, which must

attract attention of the Authorities of the University. It would thus, admit of no doubt that decisions to divest the petitioner of the post of the Head

of the Department of Dogri and additional charge of Director of SVAPADA and Principal of IMFA were taken by the Vice Chancellor without

according consideration to the clarification sought and obtained from her and much less without hearing her or providing her opportunity of being

heard.

Correct it is that Statute 22 of Chapter III of Vol. I of the University Calendar empowers the Vice Chancellor to nominate a teacher of a

Department to act as Head of the Department for such period as he may determine. However, there is difference in appointing a teacher as Head

of the Department for a particular term and replacing him by another teacher in routine manner on one hand and removing a teacher from the post

of Head of the Department pursuant to some allegations/suspicion against her/him. Same principle would apply while divesting a teacher of

additional charge by another arrangement of the similar nature. Even though a competent authority which gives additional charge to its officer has

the competence to divest him of that charge but it would be different matter when that is done pursuant to some allegations/suspicion and inquiry

into those allegations. Legal position in this regard is well stated in the two authorities cited by Mr. W.S. Nargal, learned counsel for the

respondents. In para No. 16 of the judgment in Nehru Yuva Kendra Sangathan's case (supra), Supreme Court has observed:

The respondent was appointed on a temporary basis. He was put on probation. Indisputably, the period of probation was required to be

completed upon rendition of satisfactory service. Only in the event of unsatisfactory performance by the employee, the termination of probation

would have been held to be justified. It is, however, well known that when the foundation for such an order is not an unsatisfactory performance on

the part of the employee but overt acts amounting to misconduct, an opportunity of hearing to the employee concerned is imperative. In other

words, if the employee is found to have committed a misconduct, although an order terminating probation would appear to be innocuous on its

face, the same would be vitiated, if in effect and substance it is found to be stigmatic in nature.

In Satyender Singh Rathore's case(supra), Supreme Court has surveyed a large number of cases dealing with the questions whether

termination of service is simpliciter or punitive and has in particular referred with approved para No. 21 of Dipty Prakash Banerjee's case (1999) 3

SCC 60, which reads:-

If findings wee arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular department enquiry, the simple

order of termination is to be treated as founded' on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and

the employer was not inclined to conduct an enquiry but, at the same tune, he did not want to continue the employee against whom there were

complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into

the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a

circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid.

Given the background in which impugned orders have been passed, I entertain no trace of doubt in holding that both these orders are punitive

as well as stigmatic. Petitioner has been divested of the three charges because of her having written letters dated 22.12.2014 and 30.12.2014

pointing out that the answer scripts entrusted for evaluation to Prof. Shiv Dev Singh Manhas were evaluated by at least three persons without

according consideration to the explanation submitted by her or hearing her. Besides, she was suspected to be responsible for sharing with the

JURSEA or not maintaining confidentiality of the contents of these letters leading to press conference by JURSEA. The principles of natural justice

required that the explanation submitted by the petitioner should have been accorded consideration to and the petitioner should have been given

opportunity of bearing heard. Such a course seems to have been ordered by the Vice Chancellor but got frustrated due to incorrect reporting

made by the Registrar on 16.02.2015. Clarification submitted by the petitioner was not accorded consideration as the same was not placed before

the Vice Chancellor.

For all that said and discussed above, impugned orders, as they suffer from violation of principles of natural justice cannot sustain and are liable

to be quashed.

Viewed thus, this petition has merit and is allowed. By issue of writ of certiorari the impugned order Nos. Adm/TW/15/946-96 dated

16.02.2015 and Adm/TW/15/936-45 dated 16.02.2015 are quashed and by issue of writ of mandamus respondents are directed to restore the

status and position of the petitioner as it was prior to passing of the impugned orders.

It is, however, made clear that quashing of the impugned orders will not come in the way of the respondents to take fresh action in the matter

by following the principles of natural justice or in the way of the power of the Vice Chancellor under Statute 22 to be exercised in the manner as it

is exercised in the normal course.

Disposed of.