D.R. Chauhan vs The Vice-Chancellor, H.P. Krishi Vishva Vidyalaya and Others

V.D. Misra, C.J.—The Petitioner is an employee of the Himachal Pradesh Krishi Vishva Vidyalaya (referred to as the University). He was working as a Deputy-Superintendent when he was promoted to the post of Superintendent on 23/24th October, 1979. He was put on probation for a period of two years and posted in the office of Dean, College of Agriculture, Solan. However, before he could complete the probation period successfully, he has been reverted. The Petitioner challenges this order in this writ petition.

The Petitioner alleges mala fides on the part of the Dean (Dr. O.P. Awasthi, Respondent No. 3). It is averred that in the course of his duties the Petitioner found that the Dean as well as the Assistant Registrar (Respondent No. 4) were misusing the vehicles of the University, and they had drawn about rupees five lacs as advances out of the contingency funds of the University which were outstanding. He submitted a note pointing out these irregularities. It is alleged that thereafter both the Respondents "conspired and hatched a plan to give adverse entries to the Petitioner" though he had worked under them, for a period of less than three months. A grievance is also made of the fact that till 30th December, 1980, the adverse entries were not conveyed to the Petitioner. The adverse remarks are stated to be the result of a personal vendetta and not objective assessment of the performance of the Petitioner. The Petitioner represented against the adverse remarks conveyed to him pointing out the mala fides of the two Respondents. The Petitioner goes on to allege:

the Petitioner believes that besides the aforesaid controversy with regard to the financial irregularities and also involvement of Respondents 3 and 4 amounting to temporary embezzlement, this report was secured by Respondent No. 2 by personally asking Respondents Nos. 3 and 4 to give adverse remarks in the A.C.R. of the Petitioner for the period which was even less than three months, since the Petitioner, being a Secretary of the Association known as Non-Teaching Employees Joint Co-ordination Committee (Federation) submitted a memorandum to the Chancellor of the University, by name, on 12th February, 1981.

By this memorandum serious allegations were made against Respondent No. 2, Vice-Chancellor of the University. It is thus submitted that adverse remarks are the result of the revengeful attitude of all these Respondents.

Another fact alleged by the Petitioner is this. An order was passed by Dr. D.R. Thakur, Pro Vice-Chancellor of the University on 5th January, 1981, transferring various officials to his own office. One of the transferees was the Petitioner. The Petitioner, who was working with the Dean, immediately joined the office of the Pro Vice-Chancellor without caring to get himself relieved from the office of the Dean. It is alleged that the Dean was not willing to relieve the Petitioner with mala fide intention to spoil his career though he had appointed the Petitioner as confidential room in charge to conduct trimester system examination which was a responsible job. It is stated that the Petitioner joined the office of the Pro Vice-Chancellor at once since these were the orders of a superior officer.

The aforementioned allegations are denied by the Respondents. It is stated that frivolous objections in respect of the finances were raised by the Petitioner in order to harm the reputation of the Respondents. The Petitioner was not found upto the mark and was, therefore, reverted.

The material on record reveals that the office of Pro Vice-Chancellor was created by the end of 1980. Dr. D.R. Thakur took over charge as Pro Vice-Chancellor, Himachal Pradesh Krishi Vishva Vidyalaya, Solan, on 2nd January, 1981. Though the office of the Pro Vice-Chancellor was duly created, it was without staff. No powers were given to the Pro Vice-Chancellor to order any transfer. It was later on that the relevant statute was amended giving him powers with effect from 23rd November, 1981. Now, what the Pro Vice-Chancellor did was to issue an office order (Annexure P-7) on 5th January, 1981, ordering the transfers of eight persons to his office. It was, however, later on that the Vice-Chancellor agreed to these transfers. But in the meantime apparently there were misunderstandings between the Pro Vice-Chancellor and the Dean. The Petitioner, for reasons best known to him, joined the office of Pro Vice-Chancellor without getting himself relieved.

Now, it is not true that the Petitioner had worked for less than three months under the Dean. It has been explained in detail in reply-affidavit that he had worked for a period of 101 days. This is not controverted before me, nor it is disputed that the Dean was justified in writing the annual confidential report under the rules.

In order to support the allegations of mala fides the Petitioner in his rejoinder-affidavit for the first time pointed out that the statutory Auditors vide their audit report for the period from 11/78 to 3/80, item No. 17-A, pointed out the financial irregularities. An extract of the report (Annexure P-21) was placed on record. This audit report, which is placed before the Vidhan Sabha, is duly printed. The University by its supplementary affidavit has placed on record Annexure R-5. This is a copy of the reply of the Dean which is placed before the Vidhan Sabha along with the audit report. The reply records that the facts stated therein were got verified "by the audit and Resident Senior Auditor, posted at Solan". It shows that the element of advances was indeed very nominal during the audit period. Now, it is not denied before me that Resident Senior Auditor is an employee of the A.G.''s office whose duty is to have the pre and post audit checks. It is true that the reaction of the Vidhan Sabha is not known. However, Annexure R-5 leaves no doubt that the Petitioner, for reasons best known to him, had raised frivolous and unnecessary objections alleging huge advances being taken by the Dean and the Assistant Registrar. On the basis of Annexure R-5, the Comptroller, whose functions are given by statute 3.10 of the Statutes of the University, had duly supported the note of the Dean and had recommended that sub-para 17-A of the audit objections be dropped. It may be noticed that no mala fides have been alleged either against the Comptroller or against the Resident Senior Auditor. Therefore, there are no reasons to disbelieve the contents of Annexures R-5 and R-6.

At this stage the adverse remarks conveyed to the Petitioner may be noticed. The relevant part of the adverse remarks relating to A.C.R. for the period 27-10-1979 to 31-3-1980 reads:

Whatever period Shri Chauhan had worked effectively during Oct., 1979 to March, 1980, his attitude towards office work had been generally indifferent. He is quite capable of writing lengthy notes with nasty remarks and is always on the look out for ways and means which can cause delays in the disposal of papers. He has, however, the leadership qualities and can manage quite a following of gullible young subordinates to do errand for him for agitations etc.

Grading: ''Poor''.

The adverse remarks for the period 1-4-1980 to 8-1-1981 read:

Remained on medical leave for 80 days although he was noticed taking part in his Union activities by coming to the office while on medical leave.

Shri D.R. Chauhan did not show any change in his behaviour over what was assessed during the previous year except that his correspondence became nastier and he became more non-co-operative. He was made in charge of Academic section which section was formerly under the control of an Associate Professor but he politicalised the issue showing as if his status has been down-graded. He enjoyed 131 days leave during the period of nine months he worked in the Academic Section of the College of Agriculture, most of which he availed of without caring to have his leave sanctioned before hand or/and on medical grounds. During the remaining period, i.e. the days he attended office after excluding the casual leave, holidays, etc., he was very liberal with the exercising of his power to grant casual leave to the officials of the Academic Branch, when their services were badly required.

Shri Chauhan was detailed for duty in his office by the P.V.C. on 5th/6th January, 1981, and he relinquished his charge of Academic Branch on 8-1-1981 to join duties in the office of the P.V.C. without caring to have himself relieved from the office of the Dean, College of Agriculture and without his caring to go to Palampur for collection of results which work was assigned to him in the last week of December, 1980/beginning of January, 1981.

Did not display any sign of integrity to the institution or his superiors by his actions at least.

Unfit (for promotion). Rather his is an example for review for demotion before he completes the probation period.

He has no loyalty to the institution. That is his creed. This needs to be curbed.

On the basis of the above remarks given above, you have been graded as a ''poor'' worker.

I am further directed to advise you to remove the defects pointed out above.

Though during the course of arguments serious allegations were made against the Dean that the A.C.R. of the Petitioner had been created later on, my scrutiny of the same shows that this is nothing but a wild and unfounded allegation. The first A.C.R. was written by the Assistant Registrar (Jagmohan Sharma) on 7th June, 1980. The Dean endorsed the same on 21st October, 1980. The Vice-Chancellor gave his endorsement on 23rd December, 1980. The adverse remarks were conveyed on 29th/30th December, 1980. The next A.C.R. relating to the period from 1-4-1980 to 8-1-1981, was written on 1-5-1981 by the Assistant Registrar. The Dean''s endorsement is dated June 6, 1981, whereas the Vice-Chancellor endorsed it on 14-7-1981. This was conveyed to the Petitioner on 17th July, 1981 (Annexure P-6). The Petitioner represented against the adverse remarks conveyed to him but his representations were rejected.

Another fact may now be noticed. The Pro Vice-Chancellor while forwarding the representation of the Petitioner by his letter dated 28th August, 1981 (Annexure P-9) addressed to the Vice-Chancellor, wrote that the conduct of the Petitioner for over 8 years, that is from October, 1971 to July, 1979, when Dr. Thakur was heading the College of Agriculture, Solan, was found highly satisfactory. Dr. Thakur also explained the urgent need why the Petitioner had been transferred from the office of the Dean to his own office. The Registrar of the University by his letter dated 5th September, 1981, (Annexure P-9A) wrote back to Dr. Thakur that his appreciation of the Petitioner''s work of aforementioned eight years was not relevant and was uncalled for since the Petitioner''s conduct as Superintendent was under review.

Now, whatever may have been the reasons for the Pro Vice-Chancellor for his having given a good certificate for the work done by the Petitioner for the period previous to the Petitioner''s appointment as a Superintendent, this appreciation was indeed irrelevant. The Petitioner was on probation as a Superintendent. His work as a Superintendent was under review. Therefore, the assessment of the Petitioner''s work as Superintendent had to be done ignoring the Pro Vice-Chancellor''s letter.

The record placed before me shows that the representation of the Petitioner was duly considered after obtaining the comments of the Assistant Registrar as well as the Dean. The representation was thereafter rejected by an order, dated 12-10-1981.

The Petitioner has been reverted by an order, dated 23-10-1981 (Annexure R-1). It reads:

In exercise of the powers vested in him under statute 6.7(3), read with decision of Board of Management vide item No. 13 of the proceedings of its meeting held on 23-7-1979, the Vice-Chancellor, H.P. Krishi Vishva Vidyalaya has been plea fed to revert Shri D.R. Chauhan from the post of Superintendent, which he was holding on probation to the post of Deputy Superintendent with immediate effect....

It is contended by Mr. Sharma, learned Counsel for the Petitioner, that statute 6.7 has not been complied with. The relevant part of this statute reads:

6.7 Probation.-

(1) xx xx xx xx (2) The Head of the Office or Controlling Officer of an employee shall send to the competent authority at least two months before the date of expiry of the probation period a report about the work and conduct of the employee appointed on probation with a definite recommendation about the fitness of his confirmation in the service.

(3) If during his period of probation, the work and conduct of an employee is, in the opinion of the appointing authority, not satisfactory, it may dispense with his service or revert him to his former post, if any, or extend the period of probation and thereafter pass such orders as would have been passed by it on the expiry of the first period of probation provided that the total period of probation including extension, if any, shall not exceed three years if there is a permanent vacancy against which the employee can be confirmed. If it is decided to dispense with the service of an employee it shall not be necessary to serve a notice on the employee for the termination of his service.

(4) On satisfactory completion of the period of probation the competent authority may confirm an employee in the appointment provided that the employee appointed in a leave vacancy or in a tenure post shall not be considered for confirmation in the service.

It is contended that no report was asked from the head of the office or the controlling officer of the Petitioner about the Work and conduct of the Petitioner. Even the Pro Vice-Chancellor by his letter dated 26-10-1981 (Annexure P-14) wrote to the Vice-Chancellor complaining that he should have been asked about the work and conduct of the Petitioner in accordance with statute 6.7(3).

This statute envisages two situations. One is when the question arises whether a probationer should be confirmed. Now, before the probationer is confirmed it is necessary to have a report in terms of Clause (2) of the statute. This requires the reporting officer to make a definite recommendation whether the probationer is fit for confirmation in the service or not. But then a situation may arise where the probationer is not proving upto the mark and has to be reverted. This reversion can take place at any time during the probation period. It is not that the probationer can only be reverted after the expiry of or immediately before the expiry of the probation period. Under this situation Clause (3) of the statute becomes operative. Obviously Clauses (2) and (3) are independent of each other. When the appointing authority forms an opinion that the work and conduct of the probationer is not satisfactory, the probationer can be reverted. It is not necessary that the appointing authority must call for the report of the head of the office or the controlling officer.

In the instant case, the report of the working and conduct of the Petitioner contained in two annual confidential reports, referred to above, was found unsatisfactory, the adverse remarks had been conveyed to the Petitioner and his representations had been duly rejected. In these circumstances it cannot be said that the provisions of statute 6.7 were not duly complied with.

Another contention raised by Mr. Sharma was that the reporting officer and the reviewing officer did not adhere to the schedule laid down by the rules for writing the annual confidential reports (Annexure R-3). It is true that a period has been fixed by these rules. Under Rule 5 the reporting officer is required to initiate the reports by the end of April every year. These are required to be received by the reviewing bfficer by 15th of May. The reviewing officer is required to submit the report to the accepting dfficer by the end of May each year. The accepting officer is required to give his remarks by the 30th of June (Rule 8 The adverse remarks are required to be conveyed to the ollicial/officer concerned by 15th of August (Rule 9). Rule 9 further lays down that if there has been any delay, the adverse remarks should be communicated within three weeks of the acceptance of the report by the accepting officer. But Rule 16 provides that non-adherence to the time schedule shall not render the report null and void if the Vice-Chancellor is satisfied that non-adherence to the time schedule was beyond the control of the Officer/Official concerned. Therefore, the reports not adhering to the time schedule cannot be ignored.

A Full Bench of the Orissa High Court in S.S.S. Venkatrao v. State of Orissa and Ors. 3974 (2) S.L.R. 899, observed that the time prescribed in the circular for communication of the adverse entry is not mandatory but directory. It also held that character roll can be acted upon before final disposal of the representation. It further held that if the representation is ultimately rejected, the action taken on the basis of the confidential report would stand.

The Supreme Court in Varanasaya Sanskrit Vishwavidyalaya and Another Vs. Dr. Rajkishore Tripathi and Another, observed that in a matter touching either the discipline or the administration of the internal affairs of a University, Courts should be most reluctant to interfere. It was also observed that general allegations of collusion or mala fides are insufficient even to amount to an averment of fraud of which any Court is to take notice, however, strong the language in which they are couched may be.

It is submitted that a memorandum (Annexure P-5) was submitted to the Chancellor of the University on 12-2-1980 by the Himachal Pradesh Krishi Vishva Vidyalaya (Non-Teaching) Union making serious charges of gross misuse of power, financial irregularities, nepotism and favouritism etc. against the Vice-Chancellor. It is contended that writing and conveying of adverse remarks is because of these charges made in the memorandum and the Petitioner''s pointing out of financial irregularities on the part of the Dean and the Assistant Registrar. I have already pointed out that the allegations made against the Dean and the Assistant Registrar were indeed frivolous and baseless. As regards the allegations made in the memorandum, the Respondent Vice-Chancellor in his affidavit has stated that the Chancellor had got the charges scrutinised/examined and found no substance in them. This fact was reported by the Vice-Chancellor to the Board of Management of the University in is meeting held on 8-8-1980. The relevant part of the proceedings reads:

The Vice-Chancellor also informed the members of the Board of Management that the Chancellor, after due scrutiny, having found no substance in various charges levelled against the Vice-Chancellor by the non-teaching employees of the University during their last agitation, had filed the memoranda of the non-teaching employees containing the said charges/allegations.

It is true that this memorandum was signed by the Petitioner. But he was only one of the signatories. Three other employees had also signed the same. One of them was Rattan Chand Sharma, who was also on probation. Certificate of satisfactory completion of his probationary period was issued on 13-10-1980. This Rattan Chand Sharma signed as the General Secretary of the Union whereas the Petitioner had signed as Secretary, Joint Co-ordination Committee of the Union. It is, therefore, obvious that there was no malice against the persons signing the memorandum.

Mr. Nag, learned Counsel for the Respondents, has raised a preliminary objection that since the University has not been made a party, the petition is not maintainable. I find that Section 3(3) of the Himachal Pradesh Krishi Vishva Vidyalaya Act, 1978, makes the University a corporate body which is required to be sued by that name. This objection, however, could easily be removed by the Petitioner by adding the University as one of the Respondents and, therefore, I do not consider it as fatal.

The result is that there is no force in the petition which is dismissed with costs.