Dismissed

Riyaz Hussain v. the Janardhan Rai Nagar R.V.P. and Ors.

Rajasthan HC18 Mar 2016CW/7924/2015

Case brief

AI extract

What is this about?

The Single Judge held that the deemed University was a 'State' amenable to writ jurisdiction per DR. Janet Jeyapaul. Discouraging premature intervention, the Court dismissed writs challenging a second charge-sheet and a suspension order, directing parties to exhaust departmental remedies.

What did the court decide?

Both writ petitions dismissed with an observation that proceedings be concluded expeditiously.

Riyaz Hussain Vs the Janardhan Rai Nagar R.V.P. and… — Service and Employment | 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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(1) S.B. Civil Writ Petition No. 1309/2016

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Riyaz Hussain vs. The Janardhan Rai Nagar
Rajasthan Vidhya Peeth
(Deemed University)

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(2) S.B. Civil Writ Petition No. 7924/2015
Riyaz Hussain vs. The Janardhan Rai Nagar
Rajasthan Vidhya Peeth
(Deemed University)

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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. Mr. P.S. Bhati with Mr. Sajjan Singh advocates for respondents

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BY THE COURT :

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Challenge in the present writ petitions is to the suspension order dated 20.7.2015, the subsequent charge-sheet dated 11.8.2015 and for quashing of Departmental Enquiry.

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Briefly put, the petitioner was appointed on the post of L.D.C. vide order dated 17.8.1988 and subsequently was promoted on the post of Assistant Registrar by order dated 19.2.2002. The petitioner, while working with the respondentUniversity, was directed by Vice Chancellor to keep a watch over the employees who were agitating against Vice Chancellor. Pursuant to the order passed, the petitioner remained present at the place of demonstration staged by the employees. The petitioner on coming to know about several irregularities

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committed by the Vice Chancellor filed a writ petition in the High Court. The respondent-Registrar issued a charge-sheet dated 28.5.2015 and leveled five charges against the petitioner. Reply to the charge-sheet was filed and no action was taken thereon. The petitioner came to be suspended on 20.7.2015 and thereafter, a second charge-sheet dated 11.8.2015 came to be served upon the petitioner on the same/similar charges under rule 83 (IV to VII) of the Janardhan Rai Nagar Rajasthan Vidhyapeeth University Teacher, Officers and Non-Teaching Employees Service Conditions Rules, 2006 for major penalties.

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Mr. R. S. Choudhary learned counsel for the petitioner contends that once the department had proposed not to take any further departmental action after perusing the reply filed to a charge-sheet dated 28.5.2015, any subsequent charge-sheet for imposition of major penalties is unsustainable and the same should be quashed.

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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 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 deep 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 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

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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 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

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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 JeyapauL v. SRM University & ors ., reported in AIR 2016 Supreme Court 73, the Apex Court while referring to several authorities , came to the conclusion that the SRM University was engaged in imparting higher education to students at large and was thus, discharging 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 in the 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 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, its activities are closely supervised by the

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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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The question that arises is whether this Court should interfere in the matter where disciplinary proceedings have already been initiated. The main plea taken in the writ petition is that the petitioner was subjected to charge-sheet dated 28.5.2015 which had been issued by leveling five charges against the petitioner and once the petitioner had replied to the said charge-sheet and no action was taken thereon, no occasion arose for the petitioner to be served with another charge-sheet dated 11.8.2015 by which major penalties were to be imposed. Reliance has been placed on a judgment in .S.S. Darbari vs. Union of India, reported as 2000 (1) WLC(Raj.) 707 to contend that the second charge-sheet issued suffers from lack of bona fides on the part of the respondents, since the charges leveled are the same as per the charge-sheet issued on 28.5.2015. This has been denied by contending that the chargesheet issued on 28.5.2015 was in the form of a show cause notice, as there is no mention of provisions of law, whereas by invoking provisions of Section 84 (IV to VII) of Janardan Rai Nagar Rajasthan Vidyapeeth University Teacher, Officers and Non-Teaching Employees Service Conditions Rules, 2006, a

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regular charge-sheet dated 11.8.2015 came to be issued. This Court is not inclined to go into the question whether it was a show cause notice issued or a regular charge-sheet especially when the charge sheet has be issued by a person competent to do so . These pleas are all available to the petitioner while facing the Departmental Enquiry. The petitioner has ample opportunity to raise all please, and any opinion made at this stage may effect the proceedings which have been initiated.

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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. Prabhash Chandra Mirdha reported as (2012)11 SCC 565 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; 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

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of India and Anr. v. Kunisetty Satyanarayana).

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11. 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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12. 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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S.B.Civil Writ Petition No. 7924 of 2015 has also been filed wherein a challenge has been made to the suspension order dated 20.7.2015. The law in this regard is stated by the Supreme Court in the case of State of Orissa v. Bimal Kumar Mohanty, (1994) 4 SCC 126 is well settled . The relevant para of this judgment is reproduced hereunder:-

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“ 13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks

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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

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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.”

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Against the said suspension order dated 20.7.2015 the petitioner has a remedy of filing an appeal and the same should be availed of.

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Thus in view of the fact that the departmental proceedings have been initiated against the petitioner and an opportunity is given to raise all objections therein, the Court is not inclined to interfere in the matter.

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Resultantly both the above noted writ petitions stand dismissed with an observation that the proceedings be concluded as expeditiously as possible.

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(JAISHREE THAKUR), J.

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mlt.

Riyaz Hussain v. the Janardhan Rai Nagar R.V.P. and Ors.

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Riyaz Hussain v. the Janardhan Rai Nagar R.V.P. and Ors.

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