Dismissed

Subhash Bohra v. the Janardhan Rai N.R.V.P. Udaipur and Ors.

Rajasthan HC18 Mar 2016CW/6493/2015

Case brief

AI extract

What is this about?

This order dismissed a writ petition challenging a suspension, enquiry, and charge-sheet against a university employee. The court held the deemed university was subject to writ jurisdiction as a 'State' under Article 12. It observed that a writ does not lie against a charge sheet at the initial stage unless issued by an incompetent authority, and dismissed the writ on merits.

What did the court decide?

Rejection of writ petition challenging suspension, enquiry report, and charge-sheet issued by the University authorities.

Subhash Bohra Vs the Janardhan Rai… — Pension and Retirement Benefits | Rajasthan HC (2016)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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ORDER

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Subhash Bohra vs. The Janardhan Rai Nagar Rajasthan Vidhya Peeth & ors.

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S.B.Civil Writ Petition No.6493/2015 under Article 226 of the Constitution of India.

Date of Order:

18.03.2016

PRESENT

HON'BLE MISS JUSTICE JAISHREE THAKUR

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Mr. R.S. Choudhary, Advocate, for the petitioner. Dr. P.S. Bhati with Mr. Sajjan Singh, Advocates, for respondents.

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BY THE COURT:

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Challenge to the writ petition is against the impugned suspension order dated 8.10.2014(Annex.-8) passed by the respondent-Registrar as well as to the appointment of Enquiry Officer (Annex.-10), impugned Enquiry Report dated 3.2.2015 (Annex.-12) and the impugned charge-sheet dated 30.3.2015 (Annex.-13) issued by the Vice Chancellor.

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The petitioner was working on the post of U.D.C. with the respondent-University and was made in-charge of the Guest House at Udaipur. The respondent-Registrar, by an order dated 8.10.2014, placed the petitioner under suspension alleging that he had committed several irregularities during the tenure of being in-charge of the Guest House. Aggrieved against the order dated 8.10.2014, an appeal came to be preferred before the Appellate Authority. The respondent-Vice Chancellor appointed

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an Enquiry Officer on 3.11.2014. Against the appointment of the Enquiry Officer, the petitioner submitted a representation to the respondent-Vice Chancellor to complete the enquiry within a period of seven days. The enquiry was completed and in the Enquiry Report dated 3.2.2015 it was submitted that the petitioner had committed several financial irregularities and indiscipline. On the basis of Enquiry Report submitted, the Vice Chancellor issued a charge-sheet dated 20.3.2015 with a direction to file reply to the charge-sheet. Subsequent threto, Registrar vide order dated 1.5.2015 directed that 75% of the subsistence allowance be paid to the petitioner. The petitioner thereafter, made a request for supply of documents and eventually, he was permitted to inspect the record. Aggrieved, that the Enquiry Officer is acting under the instructions of the respondent-Vice Chancellor, the present writ petition has been filed, alleging that the order of suspension dated 8.10.2014 is highly arbitrary as the same does not disclose any allegation against the petitioner. It is also urged that the respondent-Vice Chancellor is not a Disciplinary Authority as per Service Conditions, moreover,he being the appellate authority, a remedy of appeal would be lost.

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Mr. P.S. Bhati with Mr. Sajjan Singh learned counsel for the respondents contend that this Court does not have the jurisdiction to entertain the writ petition on account of the fact that the University-Janardhan Rai Nagar Rajasthan Vidhya Peeth University is not a State or an authority which is an instrumentality of the State within the meaning of Article 12 of

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the Constitution of India. It is also contended that this Court should not interfere in the disciplinary proceedings which have been initiated against the petitioner.

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I have heard learned counsel for the parties and have perused the record of the case.

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It is argued that even though the said University was notified as a deemed University under Section 3 of the University Grants Commission Act, 1956, there is no deemed or pervasive control of the State nor is there any financial control of the State over the University and thus, the said deemed University does not stand to test as laid down in Ajay Hasia etc. vs. Khalid Mujib Sehravardi and others etc., reported in AIR 1981 SC 467. it is also argued that in a judgment reported as Praveen Kumar & anr. v. Jain Vishva Bharti Institute, RLW 2004(4) Raj. 2528 the learned Single Judge came to hold as under:-

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“ As against this, in the present case, at the highest, the extent of grant received is only 20-25% for development purpose, and the Board of Management comprising of 16 persons has only three persons from the Government, being one nominee of the Chairman of the U.G.C. one nominee of the Government of India, and one nominee of the State Government, but then, the decision is by the majority. Thus, the Government of India, or the Government of Rajasthan, or the U.G.C. are not even having administrative or supervisory control, over the administration of the Institute, apart from the fact, that according to the respondents, the main source to financial aids are the donors, and not the Government, or any other agency of the Government, and the learned counsel for the petitioner has not been able to show it to be otherwise. So far the

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control, stressed upon and pointed out by the learned counsel for the petitioner, by reference to the provisions of the Act is concerned, in my view, a look at Section 3 shows, that thereby an institution, which is notified to be Deemed University, is to be deemed to be a University “for the purpose of this Act”, and all the provisions of the Act apply to such institution “as if it were a University within the meaning Clause (f) of Section 2”. Then a look at the statement of objects and reasons, shows, that the Act was enacted to make provisions for coordination and standards in Universities, ad for that purpose established a University Grants Commission. Thus, whole object of the Act is to maintain standards in the University. It is in this sequence, that according to Section 12, it is the general duty of the Commission to take such steps, in consultation with the University, and other bodies concerned, as it may think fit “for promotion and coordination of University education and for determination and maintenance of standards of teaching, examination, and research in Universities....” Then under Section 13 of the power of inspection is for ascertaining standards of teaching, examination and research and for ascertaining the financial needs of the University. Then according to Section M the consequences of the failure to comply with the recommendation of the Commission is, with-holding of the grant. So far Section 20 is concerned, that is for the U.G.C. that is to be guided by the directions on the question of policy relating to national purposes as may be given by the Central Government. Thus, the field of operation of control under the provisions of the Act, is very limited rather it is for the purpose of maintaining standards of education, examination and research. So far as the structural aspect of the Society is concerned, the provisions of the Act has nothing to do with it, nor

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any of the provisions of the Act, in any manner effect the control and management of the Society, much less does it render the Society” financially, functionally and administratively dominated by or under the control of the Government” as expected in para 27 of the judgment in Pradeep Kumar's case, much less does it render the control 'deed and pervasive', rather, to use the words of Hon' ble Supreme Court in Pradeep Kumar's case again “the control is merely regulations whether under the statute or otherwise”, and therefore, it does not serve to make the body a “State” within the meaning of Article 12. So far functional part is concerned, again in my view, the society, to use the words of the majority judgment of Hon'ble Supreme Court in Pradeep Kumar's case, is not discharging “ Functions which can be said to be fundamental to the governance of the country.”

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On the other hand, learned counsel for the petitioner contends that in a recent judgment reported as Dr. Janet

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JeyapauL v. SRM University & ors., reported in AIR 2016

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Supreme Court 73 , the Apex Court while referring to several authorities, came to the conclusion that the University was engaged in imparting higher education to students at large and was thus, discharging all public functions. The argument raised by the respondents that the test as supplied in the case of Ajay Hasia (supra) are not satisfied, in so far as there is no deep pervasive or financial control over the management and functioning of the University by the State and hence the said University would not be amenable to writ jurisdiction, is not sustainable. The Apex Court, while deliberating over the issue whether a deemed University as notified under Section 3 of the

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U.G.C. Act would be amenable to writ jurisdiction or not, came to hold that once an institution performances or discharges a public function or public duty, is subject to the rules and regulations of affiliating University, activities are closely supervised by the University's authorities, then such authority would be amenable to writ jurisdiction. Similarly on the same corollary, in the present case, the University being a deemed University as notified by the University Grants Commission and performing a Public Function / Duty would be amenable to writ jurisdiction. Therefore, the plea taken by the respondent University regarding maintainability of the writ petition is over ruled.

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It is argued by Mr. R.S.Choudhary, learned counsel appearing on behalf of the petitioner that charge-sheet itself is not maintainable on account of the fact that it has been issued by the Vice Chancellor, who is not the Appointing Authority of the petitioner. Reliance has been placed on rule 82, wherein it is specified that the Appointing Authority of any other authority empowered by the BOM/the vice chancellor in that behalf may place any teacher, officer, non-teaching staff, under suspension. Rules called Janardhan Rai Nagar Rajasthan Vidhyapeeth University Teachers, Officers and non teaching employees Service Conditions and Conduct Rules, 2006 defines “Competent Authority” which means:-

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“2(v) Competent Authority” means authority/officers to whom powers by or under the rules of the MOA are delegated. When any power is not delegated to any authority/officer, the “Competent Authority” means the Ritvika (Board of Management).

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“Disciplinary Authority” means :-

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“2(vii) “Disciplinary Authority” for the purpose of the imposition of major and or minor penalty on Teacher/Officer/Non teaching employees means the appointing authority or officer to whom such powers have been delegated to impose such penalty.”

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Per contra, Dr. P.S. Bhati, learned counsel appearing on behalf of the respondents has argued that the Vice Chancellor is competent to issue the charge-sheet. It is argued that the petitioner had raised allegations against the Registrar and in case the Registrar had issued the charge-sheet, the petitioner would have raised the ground of mala-fides as well.

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The law is well settled that the charge-sheet should not be quashed at an initial stage and it is always open to the petitioner to raise whatever pleas are available before the disciplinary authority.In The Secretary, Min. of Defence and Ors. Vs.

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Prabhash Chandra Mirdha reported as (2012)11 SCC 565

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it has been held as under:

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“ 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. (Vide;

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State of U.P. v. Brahm Datt Sharma, Bihar State Housing Board v. Ramesh Kumar Singh, Ulagappa and Ors. v. Div. Commr., Mysore and Ors., Special Director and Anr. v. Mohd.Ghulam Ghouse and Anr. and Union of India and Anr. v. Kunisetty Satyanarayana).

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In State of Orissa and Anr. v. Sangram Keshari Misra (SCC pp. 315-16,para 10) this Court held that normally a charge sheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority. (See also Union of India v. Upendra Singh).

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Thus, the law on the issue can be summarised to the effect that 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.”

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It is true that a charge-sheet has been issued by the Vice Chancellor who is not the appointing authority. However, there is no bar to a higher authority than the appointing authority to initiate disciplinary proceeding and impose punishment in case he is not the appellate authority. In the present case, the

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remedy of appeal would be available to the petitioner to the Board of Management being the competent authority.

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With the above observations, the above noted writ petition stands dismissed.

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(JAISHREE THAKUR), J.

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mlt.

Subhash Bohra v. the Janardhan Rai N.R.V.P. Udaipur and Ors.

Case brief

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Subhash Bohra v. the Janardhan Rai N.R.V.P. Udaipur and Ors.

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