Jagannath Mohapatra vs Utkal University

S. Acharya, J.—The Petitioner was a confirmed Compositor of the Maharaja Sriramchandra Utkal University Press. He has been removed from service with effect from 9-6-1975 by the then Administrator of the Utkal University as per his order by that date (Annexure 11) on the allegations that (1) he remained absent from duty without prior permission and sanction of leave and (2) he was absent from duty without intimation on several occasions. His appeal to the Chancellor having been rejected he has preferred this writ petition against the order of his removal from service.

At the time when the said order of removal from service was passed by the Administrator, the Utkal University (Taking over of Management) Act, 1974 was in force. That Act in Section 4(d) provided that .

The Administrator shall exercise the powers and perform the functions of the Senate, syndicate and the Vice-Chancellor under the Utkal University Act, Statutes and Regulations.

So, for all intents and purposes the Administrator at the relevant time was action as and exercising the powers of the Vice-Chancellor under the Act, Statutes and Regulations. The Petitioner had been appointed by the Registrar of the Utkal University with the approval of the Vice-Chancellor. While the Petitioner was working in the University Press be was served with the charges framed against him as per Annexure 5 dated 7/9-1-1975, and a departmental proceeding was started against him. In consequence of the said departmental proceeding the Petitioner, by the order of the Administrator dated 9-6-1975 (Annexure 11), was removed from his service with effect from the said date on the grounds stated above. The above facts are not disputed.

The grounds on which the impugned order of removal (Annexure 11) is challenged by the Petitioner and the grounds on which the same is defended by the opposite party shall be dealt with below so far as they are necessary for the disposal of this writ petition.

Dr. Dash, the learned Counsel for the Petitioner, at the outset urged that the departmental proceeding -initiated against the Petitioner was illegal and unconstitutional from its very inception as the same was not conducted in accordance with the accepted principles of natural justice and was in clear violation of the relevant rules. It is asserted in the writ petition and submitted by Dr. Dash, the learned Counsel for the Petitioner, that the provisions of the Orissa Service Code and the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (hereinafter referred to as the ''C.C.A. Rules'') mutatis mutandis apply to the employees of the Utkal University including the Petitioner so far as they are not inconsistent with any provision in the Acts, Statutes and Regulations of the Utkal University, and accordingly the disciplinary proceeding initiated against the Petitioner should have been m strict accordance with the procedure laid down In the C.C.A. Rules. In this connection it is urged by Dr. Dash that it was illegal on the part of the concerned authority to appoint the Inquiring Officer simultaneously with the framing of the charges and to direct the Petitioner to submit his written statement of defence directly to the Inquiring Officer. It is stated that the disciplinary proceeding so initiated is directly in contravention of the pre-emptory requirements of the C.C.A. Rules, and hence the order passed in the said disciplinary proceeding cannot be sustained. From the record of the proceedings against the Petitioner, shown to us by the learned Counsel for the opposite party, it is quite evident that the inquiring Officer was appointed simile, taneously with the framing of the charges against the Petitioner. That fact is not disputed by the opposite party and is evident from Annexure 5 to the writ petition (Registrar''s letter dated 7/9-1-1975 to the Petitioner enclosing the charges and asking the Petitioner to send his explanation to Shri B. Misra. Assistant Registrar (Ac.) who had been appointed the Inquiring Officer in this case). The learned Counsel for the opposite party, however, states that the C.C.A. Rules, so far as the same relate to the procedure for conducting the departmental proceedings, do not apply to the employees of the Utkal University and so the University authorities were not bound to follow the said Rules in this case.

(a) The Registrar of the Utkal University in his affidavit filed in this Court on the 27th July, 1978 has admitted that on 5-9-1964 the Syndicate of the University adopted the following resolution:

Resolution No. 313- That the conditions of service, leave, appointment, punishment of employees of the State Government be adopted for the University employees and steps be taken for framing a set of Rules for the University amending or modifying the Rule''s wherever necessary.

While admitting the above in paragraph 2 of the said affidavit, it is stated in paragraph 4 thereof that-

No resolutions have been passed by the Syndicate specifically adopting the Orissa Civil Services C.C.A.) Rules'' in respect of its employees. In paragraph 5 of the said affidavit the Registrar, however, says that he has joined as Registrar of the University only on 3-10-1977, and to the best of his knowledge, information and enquiry no resolutions have been passed by the Syndicate of the University making the Rules applicable to the employees of the University. In the same strain he has stated that the Petitioner may furnish the year of the month in which any such resolution was passed so that a search could be made for the same and placed before the Court. The above statements in paragraph 5 of the said affidavit and the use of the word "Specifically" 10 paragraph 4 of the affidavit weaken the stand taken about non-applicability of the C.C.A. Rules to the employees of the University. The language in which the affidavit is couched indicates that the Registrar does not want to take a firm stand on this matter.

(b). In the order passed in C.J.C. No. 1196/76, disposing of that case on 28-7-1977, to which our attention has been drawn by Dr. Dash, it is expressly stated as follows:

In the counter affidavit filed by the Registrar of the Utkal University it has been specifically pleaded that the provisions of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (hereinafter referred to as the ''Rules'') were applicable to the Petitioner, and in ab much as an appeal under Rule 22 of the said Rules lay to the immediate superior of the Administrator a writ application would not be maintainable in view of the provisions of Article 226 (3) of the Constitution,

The above order of this Court clearly shows that in that case the Registrar the University took the positive stand that the provisions of the C.C.A. Rules were applicable to the employees of the University, and so the writ petition filed by the Petitioner in that case was not maintainable because of the provisions of Article 226(3) of the Constitution. Moreover, in paragraph 11 of the counter filed on 24-1-1978 in O.J.C. No. 553/77 by the present Registrar of the University (who has filed the above affidavit dated 27-7-1978 in this case), to which our attention was also drawn by Dr. Dash, it has been specifically averred:

This warning was not in the form of penalty as is prescribed in the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962- Since no departmental proceeding has been initiated against the Petitioner, the question of violating Rule 15 or Rule 16 does not arise.

From the above averment it is quite clear that the University wants to take shelter under the C.C.A. Rules in that case.. From the positive stand taken in the counter affidavits filed by the successive Registrars of the University in the above mentioned O.J.Cs. and the hesitant stance and the weak tone in which the statements in the affidavit dated 27-7-1978 have been made, one can convincingly proceed on the basis that the C.C.A. Rules have been made applicable to the University employees. Moreover, from the aforesaid resolution dated 5-9-1964 (quoted above) it is quite evident that the State Government rules embodying the conditions of service, leave appointment and punishment of the State Government employees were adopted by the Syndicate of the University. The contention put forward by the counsel for the University that by that resolution the Government rules regarding procedure for departmental proceedings have not been adopted is patently unacceptable.

(c). In I.N. Subba Reddy Vs. Andhra University and Others, it has been held:

The expression ''conditions of Service'' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it.

As Government rules regarding conditions of service are made applicable to the employees of the University by the aforesaid resolution dated 5-9-1964, any disciplinary proceeding started against an employee of the University must conform in all respects to the rules made by the Government, i.e. the C.C.A Rules. So the C.C.A Rules regarding the procedure to be adopted in a disciplinary proceeding are applicable to the University employees.

(d) The expression "other authorities" in Article 12 of the Constitution is wide enough to include within it a University created by a statute and functioning within the territory of India. This Court in Sankar Parsad Chainis v. Sambalpur University and Ors. ILR 1974 Cutt. 1074, has held that the University is a State under Article l2 of the Constitution of India. Rules and Regulations framed by the statutory and public authorities which are regarded as State under Article 12 of the Constitution have the force of law, and have binding effect. As the University by it resolution dated 5-9-1964 has adopted for its employees the Government Rules embodying conditions of service and appointment of employees, i.e. the C.C.A. Rules, the said Rules have statutory force for the employees of the University and the University authority is cannot deviate from the said Rules. The employees of the University are appointed u/s 20 of the Act. The Petitioner was appointed u/s 20(3) of the Act and they have a statutory status and not a contractual status. They, therefore, are entitled in a writ petition to a declaration of being in employment when their dismissal or removal from service is in contravention of the statutory provisions- Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, .

5 (e). The record of the proceedings shown to us by the learned Counsel for the University shows that the Inquiring Officer was appointed simultaneously with the framing of the charges against the Petitioner and while intimating the said charges to the Petitioner, he was asked directly to show cause against the said charges to the Inquiring Officer.

5 (f). Sub-Rules (2), (3) and (4) of Rule 15 of the C.C.A. Rules, which are relevant for the purpose of this case, are quoted below:

(2). The disciplinary authority shall frame definite charges on the basis of the allegation on which the inquiry is to be held. Such charges, together with a statement of the allegations on which they are based shall be communicated in writing to the Government servant and he shall be requited to submit, within such time as may be Specified by the disciplinary authority, not ordinarily exceeding one month, a written statement of his defence and also to state whether he desires to be beard in person. Explanation-In this sub-rule and in Sub-rule (3) the expression "Disciplinary authority" shall include the authority competent under these rules to impose upon the Government servant any of the penalties specified in Clauses (i) to (v) of Rule 13

(3) The Government servant shall, for the purpose of preparing his defence, be supplied with all the records on which the allegations are based. He shall also be permitted to inspect and take extracts from such other official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing in the opinion of the disciplinary authority, such records are not relevant for the purpose or it in against public interest to allow him access thereto.

(4) On receipt of the written statement of defence or, if no such statement is received within the time specified, the disciplinary authority may itself inquire into such of the charges as are not admitted or, if it considers it necessary so to do appoint a board of inquiry or an inquiring officer for tbe purpose.

From the above provisions in the said Rules it is absolutely dear that after the charges are framed against an employee that should be sent to the delinquent with a statement of the allegations on which they are based, and he shall be supplied with all records on which the allegations are based and he shall be permitted to inspect and take extracts from such other official records as he may specify, provided that such permission may be refused for reasons stated in Sub-rule (3) quoted above. After that, if the delinquent submits his written statement or he does not submit the same, then only the disciplinary authority may itself inquire into the charges framed against the delinquent as are not admitted, or, if he considers it necessary so to do, appoint a board of inquiry or an inquiring officer for the purpose. Therefore, it would not be illegal to appoint the inquiring officer simultaneously with the framing of the charges and to direct the delinquent to submit his explanation on the charges to the inquiring officer so that he will directly deal with the same from that stage. Therefore, the appointment of the inquiring officer before the submission of the written statement of defence by the delinquent cannot be supported. The above provisions are wholesome, for there may not be any necessity to appoint an inquiring officer in case the delinquent admits the charges or the disciplinary authority finds that the allegations against the delinquent have been suitably explained in the written statement of defence. My above view gets support from the observations made by a Division Bench of this Court in Rabindranath Mahanty v. Government of Orissa and Anr. ILR 1975 Cutt. 357 based on similar provisions in Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969.

On the above consideration the departmental proceeding against the Petitioner from its very inception was in clear violation at the rules prescribed for that purpose.

It has been further contended on behalf of the Petitioner that the appeal preferred by him against the order passed against him by the disciplinary authority was disposed of in a summary manner and not in accordance with the requirements of Rule 29 of the C.C.A. Rules; and so the Impugned order on that consideration also cannot be upheld. Admittedly the Petitioner had filed an appeal before the Chancellor against the order of his removal from Service, as seen from Annexure-11. The relevant portion of Rule 29 of the C.C.A. Rules is as follows:

(1) Consideration of Appeals (i)- In the case of an appeal against an order imposing any of the penalties specified in Rule 13 the appellate authority shall consider-

(a) Whether the procedure prescribed in these rules has been complied with and, if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice;

(b) Whether the findings are justified; and

(c) Whether the penalty imposed is excessive, adequate or inadequate,

and after consultation with the Commission if such consultation is necessary in the case, pass orders

(i) setting aside, reducing, confirming or enhancing the penalty, or

(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.

From the above quoted provisions in Rule 29 it is evident that the appellate authority in dealing with an appeal has to apply his mind to and consider all the different aspects enumerated in Clauses (a), (b) and (c) of that Rule.

The Registrar of the University, in communicating the appellate order of the Chancellor to the Petitioner, merely stated in Annexure 13 as follows:

Sub: Your appeal petition addressed to the Chancellor regarding reconsideration of your case. I am directed to inform you that after careful consideration of your appeal petition to set aside the order of removal and reinstatement in service, the Chancellor has been pleased to reject the same.

"This IS for your information."

The Petitioner in paragraph 20 of his writ petition has specifically asserted that his appeal before the Chancellor was rejected without any reason. In paragraph 20 of the counter filed by the University it is merely stated that the Chancellor fully considered the matter. Nothing has been shown as to in what manner the said appeal was considered, or on what specific reasons the same was rejected. There is nothing on record, nor could the counsel for the opposite party shown anything on which it can be said that the appellate authority in disposing of the appeal considered all the different aspects of the matter as required under Rule 29. As matters like this involve serious consequents, the appellate orders in such matters should be speaking orders indicating therein that the appeals were disposed of on consideration of all the different aspects required under Rule 29(1) of the C.C.A. Rules quoted above. As the appellate order passed in this case suffers from the above deficiency and shortcoming the same cannot be sustained and is hereby quashed.

It is contended by Mr. Lal, the learned Counsel for the opposite party, that as the Petitioner himself has admitted in his reply to the show cause notice that warning was given to him in the past for his absence from duty, the punishment awarded against him cannot and should not be quashed even if it is held that the disciplinary proceeding was not strictly in accordance with the rules. In the report submitted by the Inquiring Officer (Annexure 7), while giving his finding on charge No. 1 relating to the Petitioner''s absence from duty from 19-2-1974 to 23-2-1974 and on different dates upto 5-12-1974, in all 31 days, it is stated that the Petitioner'' submitted that he actually remained on leave on the days mentioned in the charge sheet''. The Inquiring Officer, on a reference to the Petitioner''s explanation, has further stated that the reasons given by the Petitioner for remaining absent without prior permission and sanction of leave are not satisfactory. On that finding he has held that the charges are not established. Therefore, his conclusion on charge No. 1 is not based on any unqualified admission made by the Petitioner. The bald statement in the penultimate paragraph of the report that the Petitioner ''admitted this charge'' is not borne ant by all that is stated in paragraph 2 of the report where this charge has been specifically and separately discussed. From the explanation submitted by the Petitioner it cannot be said that the Petitioner in unqualified terms admitted the said charge. Therein he has inter alia said that whenever he remained absent from duty he sent his application for leave to the authority concerned as he was remaining far away from the press and on all occasions it was not possible on his part to get prior permission for availing leave. He has further said that on several occasions he approached the Manager of the Press and requested him to sanction his leave on his said prior applications and the Manager assured him that he would take immediate action in that direction his assertion that applications for leave were not attended to in the University office for years is borne out by Annexure 3 which shows that his leave applications for the years 1967, 1968 and 1969 were granted by one order only on 27-9-1969 by the Registrar''s memo No. 30646 of that date. In his written statement (Annexure 6) he has inter alia stated that the said charges were framed against him with the mala fide intention of removing him from service. In view of his above stand and all that is stated above it cannot be said that he admitted the charge No. 1. His statement in the penultimate paragraph of the written statement about the previous warning conveyed to him on 12-12-1974, in the context in which it is made and read along with the other averments in that written statement, appears to be only a statement of fact invoking generous consideration of the matter by the authorities concerned, and on that statement it cannot be said that he made an admission of any of the charges framed against him.

With regard to charge No. 2, it is to be noted that the Inquiring Officer himself states in his report that the said charge has not been fully established.

Apart from the above considerations, the Petitioner has alleged several other Irregularities and violations of rules and principles of natural justice 10 connection with the departmental proceedings. But as these aspects involve disputed questions of fact we do not propose to deal with the same in this judgment.

As the order of removal of the Petitioner from service, entailing grave consequences, was passed in a disciplinary proceeding initiated in contravention of the statutory provisions, the appeal against the said order was not disposed of in accordance with the law as stated above, and the enquiring officer was evidently wrong in concluding that the Charge No. 1 was admitted by the delinquent, and the disciplinary authority was and the appellate authority must have been influenced by the said wrong conclusion, which fact assumes importance as the charge No. 2 has not been fully established, we are of the view that the enquiry is vitiated and the Petitioner did not at all have a fair deal in the proceedings against him. Hence, the impugned order annexure 11 removing the Petitioner from service and the appellate order confirming the same are hereby quashed. It shall be deemed as If the said orders were never passed against the Petitioner. The concerned authority may, however, initiate a fresh disciplinary proceedings in accordance with law against the Petitioner on the same charges, if it is so desired and considered necessary by the University. Appropriate writs be issued accordingly.

The writ petition is allowed in part. In the circumstances the parties shall bear their own costs.

P.K. Mohanti, J.

I agree.

Petition allowed in part.