Prof. Adya Prasad Pandey v. Union of India & Anr.

(vi) The appellant assailed the MOA dated 16th August, 2018 and the

Notification dated 17th August, 2018 before the Manipur High Court vide W.P.(C) No.825/2018 and also prayed for ad-interim stay, which was declined. Subsequently, two more writ petitions were filed by way of PILs, which were tagged with W.P.(C) No.825/2018. Appellant preferred S.L.P. (C) No.24707/2018 against non-grant of stay by the Manipur High Court, but no relief was granted. The Manipur High Court, vide a common judgment dated 22nd May 2019, dismissed the petition filed by the appellant and disposed of the PILs.

(vii) On 6th September, 2018, the Inquiry Committee commenced the inquiry proceedings, treating the ‘Terms of Reference’ as the charge-sheet against the appellant, which as per the appellant, was never served upon him at any stage. The appellant was placed under suspension vide order dated 17th September, 2018 by the respondent no. 2 until completion of the inquiry proceedings. The appellant did not participate in the inquiry proceedings. (viii)The Inquiry Committee, on 27th May, 2019, submitted a Report dated 3rd March, 2019 to the respondent no. 1 holding the appellant guilty of most of the 18 charges as per the ‘Terms of Reference’.

(ix) Respondent no.2 issued a show cause notice dated 24th September,

2019 to the appellant requiring him to show cause ‘as to why he should not be removed from the post of Vice-Chancellor of Manipur University for his misconduct, dereliction of duty, abuse of power and lack of commitment’. A copy of the Inquiry Report dated 3rd March, 2019 was also supplied to the appellant.

(x) The appellant submitted his reply dated 11th October, 2019 to the show cause notice, inter alia, objecting to constitution of the Inquiry Committee and procedures of inquiry, violation of principles of natural justice, preparation and issuance of charge sheet by incompetent authority and non-supply of the same to the appellant, non-supply of statement of witnesses and no evidence or material to substantiate the charges. The appellant further made allegations with respect to impartiality of the Chairperson of the Inquiry Committee on the ground that he was a close relative of the complainants.

(xi) On 21st February, 2020, the respondents passed an order dismissing the appellant from the post of Vice Chancellor. Subsequently, an advertisement dated 16th March, 2020 was issued inviting applications for fresh appointment to the said post. The appellant, aggrieved by the order dated 21st February, 2020 and the advertisement dated 16th March, 2020, filed the petition before this Court by way of W.P.(C) No.4031/2020 from which the present appeal arises, which was dismissed by the Ld. Single Judge vide the impugned judgment dated 9th April, 2021.

3. The main plank of the appellant’s submissions before the Ld. Single Judge, was violation of principles of natural justice in the conduct of the inquiry proceedings, inter alia contending that:

(i) no notice or intimation was ever issued by the Disciplinary

(ii) the inquiry proceedings against him were conducted ex parte.

(iii) the Inquiry Committee was formed without charges being drawn up, and that ‘Terms of Reference’ have no validity in the eyes of law.

(iv) the Inquiry Committee travelled beyond the allegations and gave findings on allegations that were not subject matter of the charges against him.

(v) the Visitor has mechanically reiterated the findings of the

4. The above submissions did not find favour with the Ld. Single Judge and the writ petition was dismissed by the Ld. Single Judge, with the following observations/findings:

(i) The appellant could not have challenged the proceedings of the

Inquiry Committee and its Report alleging violation of principles of natural justice after having abstained from the inquiry proceedings consciously; Inquiry Committee made several efforts to serve the notices of the proceedings to the appellant and also published the same in daily newspapers. That the appellant was conscious of the constitution of the Inquiry Committee and the ongoing proceedings as he challenged the same before the Manipur High Court by way of W.P.(C) No.825/2018. He also sent a letter dated 22nd September, 2018 to the Committee expressing his inability to appear before the Inquiry Committee.

(ii) The argument that ‘Terms of Reference’ were not supplied to the appellant and he had no knowledge of allegations leveled against him could not be sustained, as the notice published in the newspapers provided details and links of the website wherefrom the same could be accessed. He could have appeared in the inquiry proceedings and sought a copy thereof. Further, the appellant never challenged the non-supply of ‘Terms of Reference’ or the non-drawing up of charge sheet in the conventional sense, before the Manipur High Court in his writ petition challenging constitution of the Inquiry Committee.

(iii) The argument that ‘Terms of Reference’ cannot be the basis of inquiry in the absence of a conventional charge sheet deserved to be rejected based upon a bare perusal of the ‘Terms of Reference’, which unequivocally and unambiguously convey the allegations leveled against the appellant in order to enable him to defend himself.

(iv) The records indicate that the Inquiry Officer has not travelled beyond the ‘Terms of Reference’ and has rendered findings only on the 18 charges leveled against the appellant.

(v) The Inquiry Committee examined every charge leveled against the appellant and analyzed them based on oral and documentary evidence before coming to the conclusion that most of the charges stood ‘proved’.

(vi) The respondents have carefully analyzed the Inquiry Report as well as the reply received from the appellant and have passed a detailed order holding the appellant guilty of various charges and accordingly passed the dismissal order.

5. The main argument of the appellant in these proceedings was also that the appellant was not given an opportunity to present his case in the inquiry proceedings and that caused grave prejudice to him. It was further contended that even if the appellant chose not to appear before the Inquiry Committee, the Inquiry Committee had to consider the various materials on record and evidence against the respondents before coming to its conclusion. While rejecting this submission, the Ld. Single Judge has given elaborate reasons to arrive at the finding that full opportunity was given to the appellant to present himself before the Inquiry Committee, but he chose not to do so. In this regard, reference may be made to the letter dated 22nd September, 2018 written by the appellant to the Inquiry Committee, which clearly shows that the appellant was fully aware of the proceedings before the Inquiry Committee and despite that preferred not to appear in the said inquiry proceedings. In fact, the appellant had categorically stated before the Manipur High Court that he was giving up the challenge to the constitution of the Inquiry Committee on the ground of objection to impartiality of the Chairperson, and that he was ready to face the inquiry. However, even then the appellant did not appear before the Inquiry Committee. As noted by the Ld. Single Judge, the Inquiry Committee, not only published notices in the local newspapers with regard to holding of the inquiry proceedings, but also sent a special messenger to the official residence of the appellant so as to inform him about the inquiry proceedings but the appellant was not present at the relevant time and his staff refused to accept the notices. This gives further credence to the charge that the appellant preferred to spend most of his time away from Manipur, while being the Vice Chancellor of the Manipur University.

6. Despite being given several opportunities to appear in the inquiry proceedings and give his version, the appellant failed to do so. Therefore, the submission of the appellant that there was violation of principles of natural justice is completely devoid of merits. In light of the above, the contention of the appellant that he was not supplied the ‘Terms of Reference’, documents, list of witnesses and affidavits filed by the witnesses, is also misconceived. The appellant should have appeared and participated in the inquiry proceedings and sought all the aforesaid documents. Once the appellant had chosen not to appear, he cannot make any grievance out of non-supply of the aforesaid documents or violation of principles of natural justice. We fully agree with the elaborate findings given by the Ld. Single Judge.

7. It was next contended on behalf of the appellant that Professor Dorendrajit Singh, who was prominent in the agitation to remove the appellant as Vice Chancellor, illegally continued to act as the Registrar in charge as well as the Nodal Officer of the Inquiry Committee appointed to enquire against the appellant. He was the one, in his capacity as Nodal Officer, who drew up the ‘Terms of Reference’ for the inquiry. The said contention is without any merits. Even if it is assumed that Professor Dorendrajit Singh illegally continued to act as the Nodal Officer, no prejudice could have been caused to the appellant, as he was not the one conducting the inquiry. As rightly observed by the Learned Single Judge, the appellant, if aggrieved by the appointment and continuance of Professor Dorendrajit Singh as Nodal Officer for the inquiry, could have challenged the same, but chose not to do so. It is an admitted position that the appellant did challenge the appointment of the Inquiry Committee and its constitution before the Manipur High Court. Nor did he question/challenge the ‘Terms of Reference’ at the relevant time. In fact, his case was that he was never supplied the ‘Terms of Reference’, in respect of which we have already observed that he should have participated in the inquiry proceedings and obtained a copy of the same. Therefore, it is not open to the appellant to raise this issue at this stage.

8. It was further contended on behalf of the appellant that the show cause notice dated 24th September, 2019 issued pursuant to the Inquiry Report clearly shows that the respondents had already made up their mind. In this regard, the appellant relied upon paragraph 4 of the show cause notice to state that the issuance of the show cause notice was an empty formality and the respondents had already decided as to the guilt of the appellant. In our view, there is nothing in the show cause notice which suggests that the respondents had already made up their mind with regard to the guilt of the appellant. The show cause notice only summarized the findings of the Inquiry Report so as to give an opportunity to the appellant to file his response thereto. The appellant duly replied to the show cause notice and the various findings against him in the Inquiry Report, which was placed before the Respondents. Therefore, the contention that the show cause notice was faulty on account of the respondents having made up their mind against the appellant is concerned, is completely without merits.

9. Next contention of the appellant was that the respondents had mechanically accepted the report of the Inquiry Committee and adopted the same in passing the dismissal order and failed to consider the various objections raised by the appellant with regard to the Inquiry Report. In our view, this contention of the appellant is completely misconceived. Once the appellant has chosen not to appear in the inquiry proceedings and submit all material in support of his case, he has missed the opportunity to put forth his case. The appellant ought to have appeared in the inquiry proceedings and raised various defences in his favour and lead evidence. Having missed that opportunity, it was too late in the day for the appellant to re-agitate the various defences/objections which ought to have been taken in the inquiry proceedings. Undoubtedly, the appellant filed his detailed objections against the Inquiry Report, however, to contend that the same was not considered by the respondents while passing the dismissal order, is not borne out by the record. A bare perusal of the dismissal order passed by the respondents clearly shows that the respondents had gone through the entire record of the inquiry proceedings and various objections raised by the appellant, in arriving at its conclusion. A disciplinary authority is not a judicial authority, which is expected to give detailed reasons in respect of each of its findings. Therefore, one has to take a holistic view of the order passed by the disciplinary authority to come to the conclusion that whether the disciplinary authority has applied its mind while passing the order. In our mind, it is clear from a reading of the dismissal order that the respondents had duly applied their mind to the defences raised by the appellant and the record and findings of the inquiry proceedings.

10. The appellant has placed reliance on the judgment of the Supreme Court in Yoginath D. Bagde v. State of Maharashtra & Anr. (1999) 7 SCC 739 in support of the proposition that a disciplinary authority had to give reasons in support of its conclusion. The aforesaid judgment is in the context, where the Disciplinary Authority disagreed with the findings of the Inquiry Committee and the judgment has laid down the proposition that the Disciplinary Authority has to give detailed reasoning for such disagreement. This is not the situation in the present case, as in the present case the Disciplinary Authority agreed with the findings of the inquiry proceedings. Further in the present case, as noted above, the Disciplinary Authority has given full opportunity to the appellant to present his case and has duly considered the same and passed a well-reasoned speaking order.

11. The other issue raised on behalf of the appellant was that the appellant, being the Vice Chancellor, his appointment was for a period of five years or till he attains the age of 70 and that he enjoyed the protection of Article 311 of the Constitution of India and curtailment of his term can only be in accordance with law. The inquiry conducted in his case was in complete violation of law and principles of natural justice. On the other hand, the counsel for the respondents submitted that the Vice Chancellor of Manipur University, appointed for a specific term, cannot be said to be a government servant holding civil position and is, therefore, not entitled for protection under Article 311 of the Constitution of India. In support of his contention, the counsel for the respondents relied upon the judgment in the case of Union Public Service Commission v. Girish Jayanti Lal Vaghela & Ors. (2006) 2 SCC 482.

12. We have considered the submissions of the parties. The question as to the posts that enjoy protection under Article 311 of the Constitution, has been considered by the Supreme Court on many occasions. Reference may be made to the decision of the Constitution Bench in S.L. Agarwal (Dr.) v. G.M., Hindustan Steel Ltd. (1970) 1 SCC 177. In the said case, appellant therein was appointed as Assistant Surgeon by the Board of Directors of Hindustan Steel Ltd., a public sector undertaking, on contract basis and his services were terminated in accordance with the terms of the contract. He filed a writ petition in the High Court contending that his services were wrongly terminated which was violative of Article 311 of the Constitution. The Respondent contended that Article 311 was not applicable to him as he was employed by a Corporation and he neither belonged to civil service of the Union nor held a civil post under the Union. Negativing the contention of the appellant, the Constitution-Bench held that Hindustan Steel Limited is not a department of the government and its employees are not holding posts under the State. It has its independent existence under the Companies Act and therefore, its employees are not holders of 'a civil post under the Union' as stated in the Article 311. Similar view has been taken by the Supreme Court in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia & Ors. (2005) 7 SCC 764; Satinder Singh Arora v. State Bank of Patiala 1992 Supp (2) SCC 224; State Bank of India v. S. Vijaya Kumar (1990) 4 SCC 481; Pyare Lal Sharma v. Managing Director & Ors. (1989) 3 SCC 448.

13. In Dr. Gurjeewan Garewal (Mrs.) v. Dr. Sumitra Dash (Mrs.) & Ors. (2004) 5 SCC 263, the issue involved before the Supreme Court was whether the respondent therein, working with Post Graduate Institute of Medical Education and Research (PGIMER), Chandigarh could be said to be holding a ‘civil post’ with the State so as to be afforded protection under Article 311. The Supreme Court, relying upon the judgements in State of Assam v. Kanak Chandra Dutta AIR 1967 SC 884 and S.L. Agarwal (Dr.) v. G.M., Hindustan Steel Ltd. supra, held as under: “14. Reverting back to the case in hand, Section 4 of the Post Graduate Institute of Medical Education and Research, Chandigarh Act, 1966 (PGIMER Act) says that PGIMER is a “body corporate which is having a perpetual succession and a common seal with power”. This clearly provides that PGIMER is a separate entity in itself. Admittedly, the employees of any authority which is a legal entity separate from the State, cannot claim to be holders of civil posts under the State in order to attract the protection of Article 311. There is also no master and servant relationship between the State and an employee of PGIMER, which is a separate legal entity in itself. It is a settled position that a person cannot be said to have the status of holding a “civil post” under the State merely because his salary is paid from the State fund or that the State exercises a certain amount of control over the post. The PGIMER Act might have provided for some control over the institution but this doesn't mean that the same is a State for the purpose of Article 311. Therefore the employees of PGIMER cannot avail the protection of Article 311 since the same can be claimed only by the members of a civil service of the Union or of all-India service or of a civil service of a State or by persons who hold a civil post under the Union or a State.

PGIMER cannot be treated as a “State” for the purpose of Article 311 and the employees therein are not holding any “civil post”. In result, the 1st respondent is not holding a “civil post” and she cannot claim the guard of Article 311.”

14. The aforesaid reasoning is fully applicable to the present case. Like PGIMER, Manipur University is a legal entity separate from the Union. Merely because Manipur University is financed by or there is an element of control with the Central Government, it cannot be said that the employees of Manipur University hold a ‘civil post’ under the Union and are entitled to protection under Article 311 of the Constitution. Protection of Article 311 can only be claimed by the members of a civil service of the Union or of all- India service or of a civil service of a State or by persons who hold a civil post under the Union or a State. Even though the Central Government may have a role in appointment of the Vice Chancellor of the Manipur University, he will not be entitled to protection under Article 311 as he does not hold a ‘civil post’ under the Union. Therefore, the elaborate inquiry as envisaged under Article 311 before terminating the services of a government servant is not applicable in the case of the appellant. Having said that, we are of the view that the Respondents carried out an elaborate fact-finding inquiry to establish the guilt of the appellant and gave full opportunity to the appellant to participate in the same. However, the appellant instead of participating in the inquiry proceedings, preferred to challenge the inquiry proceedings, initially before the Manipur High Court and subsequently, before this Court.

15. Therefore, no infirmity can be found with the judgment of the Ld. Single Judge. After elaborately discussing the various contentions raised on behalf of the appellant, the Ld. Single Judge has rightly come to the conclusion that while exercising jurisdiction under Article 226 of the Constitution of India, the findings of the inquiry proceedings and/or Disciplinary Authority cannot be interfered, unless the same are found to be perverse or in complete violation of principles of natural justice and that principles of natural justice were followed in full in the present case. Accordingly, there is no merit in the present appeal and the same is dismissed. C.M. No.15865/2021 (of the appellant for placing additional facts and documents, on record)

16. This application has been filed by the appellant, seeking to place on record additional documents that were not part of the record before the Ld. Single Judge. It is stated that the documents sought to be filed with the application, though not before the writ court, will have a material bearing in the outcome of the case. The counsel for the appellant/applicant has stated that though the application was filed before 26th April, 2021, when arguments in this appeal were heard and orders were reserved, the said application could not be listed on the said date. The application was listed for hearing on 6th May, 2021, when both counsels were heard and it was recorded that the order on the application will be delivered with the judgement on the main appeal.

17. The counsel for the respondents has contended that the documents sought to be placed on record vide this application are not relevant for the adjudication of the present appeal and cannot be taken into consideration at this stage when the judgement has been reserved in the matter.

18. Although, in the normal course, for the adjudication of the present appeal, this Court cannot travel beyond the record before the Ld. Single Judge, we have still considered the documents sought to be filed with the said application. In our view, the said documents do not materially affect the outcome of the present appeal.

19. Accordingly, the application is disposed of. AMIT BANSAL, J. RAJIV SAHAI ENDLAW, J. MAY 13, 2021 A