AI Structured Summary
Not yet generated for this judgment
Judgment
D. Murugesan, J.—The point for consideration posed before this Court is as to whether the respondents would be entitled to continue the
disciplinary proceedings initiated against the petitioner even after his retirement, in the absence of the rules in this regard entitling the respondents to
continue the enquiry.
Following are the few facts, which give rise to the above point for consideration. The petitioner was initially appointed as a Mechanic in the
respondent Indian Institute of Technology (hereinafter referred to as the ""Institute"") in the year 1965. He was promoted as Supervisor, Chemical
Engineering and is a workman as per the definition of Section 2(s) of the Industrial Disputes Act, 1947. He was also a member of the Indian
Institute of Technology Employees'' Association. The respondent Institute issued a circular dated 2.3.99 followed by another circular dated 4.3.99
warning the employees not to participate in any demonstration during working hours and directing the employees to sign the attendance register in
both the sessions viz., morning and afternoon. The circulars were protested by the employees as it amounted to alteration of service conditions and
the Institute cannot unilaterally alter the service conditions. However, under protest the petitioner signed the attendance register during both
sessions from 4.3.99 to 14.3.99. From 15.3.99, the petitioner did not sign the attendance register in the afternoon session till 15.10.99. Since the
petitioner did not sign in the afternoon, he was not paid half salary for the period from 15.3.99 to 15.10.99. From 16.10.99 to 31.10.99 the
petitioner was on leave and therefore, he was paid full salary.
Based upon the circulars, the Institute issued another circular dated 28.4.99 directing recovery of salary to those employees who have not
signed the attendance register on both sessions. The petitioner questioned the said circular dated 28.4.99 in W.P. No. 8139 of 1999, but was
unsuccessful as this Court by order dated 25.10.99 found no illegality in the circular. This Court also found that the circulars dated 2.3.99 and
4.3.99 were well within the power of the Institute. Thereafter, when the petitioner reported duty on 1.11.99, he was issued with an order of
suspension dated 27.10.99 with immediate effect. The petitioner was also issued with a charge sheet dated 11.11.99 for the alleged misconduct of
not signing the attendance register twice daily and also the petitioner filed the writ petition without taking prior permission of the authorities, and
hence violated Rule 16(a) of Schedule ''B'' of Conduct Rules of the Statutes of the Institute. Though explanations dated 29.11.99 and 31.1.2000
were submitted, not satisfied with those explanations, an enquiry was conducted and an ex parte enquiry report was also submitted. Based on the
enquiry report, the Institute issued a second show cause notice dated 19.4.2000 proposing punitive action as per Statute 13(9)(b)(iv). On receipt
of the said show cause notice, the petitioner requested one month''s time for giving reply after consulting his lawyer. In the circumstances, the
petitioner has approached this Court questioning the circulars dated 2.3.99 and 4.3.99 and also the second show cause notice dated 19.4.2000.
While the writ petition was entertained, this Court by order dated 5.6.2000 granted injunction restraining the Institute from proceeding further
pursuant to the second show cause notice. The said injunction was directed to be in force till the disposal of the writ petition, by subsequent order
dated 7.1.2003.
On the contrary, it is the stand of the Institute that the members of the IIT Employees Association indulged in activities by demonstrations during
the working hours detrimental to the smooth working of the educational Institute from 2.11.98 to 23.2.99. The employees left their place of work
and assembled near the administrative block, shouted slogans using loud speakers and disturbed the whole area of its peace and tranquility which
necessitated the issuance of circulars dated 2.3.99 and 4.3.99 directing the employees to sign the attendance register on both sessions viz.,
morning and afternoon. Pursuant to the said circulars, recoveries were also ordered from the salary of the employees who did not sign the
attendance register on both sessions by subsequent circular dated 28.4.99. The challenge to the said circular was unsuccessful and therefore, for
the alleged misconduct of not signing the attendance register the enquiry was initiated. There is no illegality in the enquiry proceedings and hence the
writ petition is misconceived apart from the same is premature.
Mr. N.G.R. Prasad, learned counsel for the petitioner would submit that pending enquiry proceedings, the petitioner retired on 31.1.2000.
Though the charge sheet was issued on 11.11.99, in the absence of rules empowering the Institute to continue the enquiry proceedings even after
the retirement, the impugned show cause notice dated 19.4.2000 proposing penalty is without jurisdiction and hence the entire enquiry proceedings
are vitiated. He would also submit that in any case for the misconduct alleged viz., not signing the attendance register on both sessions, no purpose
would be served in pursuing the enquiry after the retirement of the petitioner.
On the contrary, Mr. K.R. Vijayakumar, learned counsel for the respondents placing reliance on sub-section (1) of Section 13 of the Indian
Institute of Technology Act, 1961 (hereinafter referred to as the ""Act"") would contend that the Board of the Institute has the powers of the Institute
not otherwise provided for by the Act, the Statutes and the Ordinances. Such power could be exercised by the Board while an employee was
allowed to retire without prejudice to the enquiry proceedings, even when there is no specific provision for continuing the enquiry proceedings
under the Statutes. By virtue of the said power the Board resolved to continue the enquiry proceedings and hence there is no illegality in the
impugned show cause notice. He would also submit that it would be premature to contend that no purpose would be served in pursuing the enquiry
after the petitioner retired from service.
In view of the rival contentions, it is to be now considered as to whether in terms of the provisions of sub-section (1) of Section 13 of the Act,
the Board is competent to direct the continuance of enquiry proceedings even after the retirement of the employee, in the absence of any rules in
this regard.
In order to decide the issue, certain relevant provisions of the Act should be referred and the same are extracted below:-
Section 2: Whereas the objects of the institutions known as Indian Institute of Technology, Bombay, the College of Engineering and Technology,
Delhi, the Indian Institute of Technology, Kanpur and the Indian Institute of Technology, Madras are such as to make them institutions of national
importance, it is hereby declared that each such institution is an institution of national importance.
Section 3(a): ""Board"", in relation to any institute, means the Board of Governors thereof.
(d) ""Council"" means the Council established under sub-section (1) of Section 31.
(g) ""Institute"" means any of the institutions mentioned in section 2 and includes the Indian Institute of Technology, Kharagpur, incorporated under
the Indian Institute of Technology (Kharagpur) Act, 1956.
Section 9(1): The President of India shall be the Visitor of every Institute.
(2) The Visitor may appoint one or more persons to review the work and progress of any Institute and to hold inquiries into the affairs thereof and
to report thereon in such manner as the Visitor may direct.
(3) Upon receipt of any such report, the Visitor may take such action and issue such directions as he considers necessary in respect of any of the
matters dealt with in the report and the Institute shall be bound to comply with such directions.
Section 10: The following shall be the authorities of an Institute, namely:-
(a) a Board of Governors;
(b) a Senate; and
(c) Such other authorities as may be declared by the Statutes to be the authorities of the Institute.
Section 11: The Board of an Institute shall consist of the following persons, namely:-
(a) the Chairman, to be nominated by the Visitor;
(b) the Director, ex-officio;
(c) one person to be nominated by the Government of each of the States comprising the zone in which the Institute is situated, from among persons
who, in the opinion of that Government, are technologists or industrialists of repute;
(d) four persons having special knowledge or practical experience in respect of education, engineering or science, to be nominated by the Council;
and
(e) two professors of the Institute, to be nominated by the Senate.
Explanation.-In this section, the expression ""zone"" means a zone as for the time being demarcated by the All India Council for Technical Education
for the purposes of this Act.
Section 13(1): Subject to the provisions of this Act, the Board of any Institute shall be responsible for the general superintendence, direction and
control of the affairs of the Institute and shall exercise all the powers of the Institute not otherwise provided for by this Act, the Statutes and the
Ordinances, and shall have the power to review the acts of the Senate.
(2) Without prejudice to the provisions of subsection (1), the Board of any Institute shall-
(a) take decisions on questions of policy relating to the administration and working of the Institute;
(b) institute courses of study at the Institute;
(c) make Statutes;
(d) institute and appoint persons to academic as well as other posts in the Institute;
(e) consider and modify or cancel Ordinances;
(f) consider and pass resolutions on the annual report, the annual accounts and the budget estimates of the Institute for the next financial year as it
thinks fit and submit them to the Council together with a statement of its development plans;
(g) exercise such other powers and perform such other duties as may be conferred or imposed upon it by this Act or the Statutes.
Section 26: Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely:-
(a) the conferment of honorary degrees;
(b) the formation of departments of teaching;
(c) the fees to be charged for courses of study in the Institute and for admission to the examinations of degrees and diplomas of the Institute;
(d) the institution of fellowships, scholarships, exhibitions, medals and prizes;
(e) the term of office and the method of appointment of officers of the Institute;
(f) the qualifications of teachers of the Institute;
(g) the classification, the method of appointment and the determination of the terms and conditions of service of, teachers and other staff of the
Institute;
(h) the constitution of pension, insurance and provident funds for the benefit of the officers, teachers and other staff of the Institute;
(i) the constitution, powers and duties of the authorities of the Institute;
(j) the establishment and maintenance of halls and hostels;
(k) the conditions of residence of students of the Institute and the levying of fees for residence in the halls and hostels and of other charges;
(l) the manner of filling vacancies among members of the Board;
(m) the allowances to be paid to the Chairman and members of the Board;
(n) the authentication of the orders and decisions of the Board;
(o) the meetings of the Board, the Senate, or any Committee, the quorum at such meetings and the procedure to be followed in the conduct of their
business;
(p) any other matter which by this Act is to be or may be prescribed by the Statutes.
Section 27(1): The first Statutes of each Institute shall be framed by the Council with the previous approval of the Visitor and a copy of the same
shall be laid as soon as may be before each House of Parliament.
(2) The Board may, from time to time, make new or additional Statutes or may amend or repeal the Statutes in the manner hereafter in this section
provided.
(3) Every new Statute or addition to the Statutes or any amendment or repeal of a Statute shall require the previous approval of the Visitor who
may assent thereto or withhold assent or remit it to the Board for consideration.
(4) A new Statute or a Statute amending or repealing an existing Statute shall have no validity unless it has been assented to by the Visitor.
Section 31(1): With effect from such date as the Central Government may, by notification in the Official Gazette, specify in this behalf, there shall
be established a central body to be called the Council.
(2) The Council shall consist of the following members, namely:-
(a) the Minister in charge of technical education in the Central Government, ex-officio, as Chairman;
(b) the Chairman of each Institute, ex-officio;
(c) the Director of each Institute, ex-officio;
(d) The Chairman, University Grants Commission, ex-officio;
(e) The Director General, Council of Scientific and Industrial Research, ex-officio;
(f) the Chairman of the Council of the Indian Institute of Science, Bangalore, ex-officio;
(g) the Director of the Indian Institute of Science, Bangalore, ex-officio;
(h) three persons to be nominated by the Central Government, one to represent the Ministry concerned with technical education, another to
represent the Ministry of Finance and the third to represent any other Ministry;
(i) one person to be nominated by the All India Council for Technical Education;
(j) not less than three, but not more than five, persons to be nominated by the Visitor, who shall be persons having special knowledge or practical
experience in respect of education, industry, science or technology.
(k) three Members of Parliament, of whom two shall be selected by the House of the People from among its members and one by the Council of
States from among its members.
(3) An officer of the Ministry of the Central Government concerned with technical education shall be nominated by that Government to act as the
Secretary of the Council.
Before surveying the above provisions, for the proper interpretation of sub-section (1) of Section 13, it must be borne in mind that there is no
dispute that the Statutes framed by the Board do not provide the power to the Institute to pursue the enquiry proceedings after an employee had
retired, though he was allowed to retire without prejudice to the enquiry proceedings. The Act was enacted by the Parliament to declare certain
institutions of technology to be the institutions of national importance and to provide for certain matters connected with such institutions and the
Indian Institute of Technology, Kharagpur. Some of the institutions known as the Indian Institute of Technology, Bombay, the College of
Engineering and Technology, Delhi, the Indian Institute of Technology, Kanpur and the Indian Institute of Technology, Madras were declared to be
the institutions of national importance u/s 2 of the Act. In terms of sub-section (1) of Section 4 of the Act, each of the Institutes mentioned above
shall be a body corporate having perpetual succession and a common seal and shall by its name sue and be sued. The powers of each Institute are
enumerated u/s 6. Sub-section (1)(i) of Section 6 relates to the power of the Institute to frame Statutes and Ordinances and to alter, modify or
rescind the same. As per Section 10, a Board of Governors, a Senate and such other authorities as may be declared by the Statutes shall be the
authorities of the Institute i.e., each Institute as declared u/s 2. The constitution of the Board of Governors is provided u/s 11. The Chairman of the
Board is nominated by the Visitor, the Visitor being the President of India, for every Institute. Apart from the Chairman, the Board of Governors
consist of a Director, one person to be nominated by the Government of each of the States comprising the zone in which the Institute is situated,
four persons having special knowledge or practical experience in respect of education, engineering or science, to be nominated by the Council and
two professors of the Institute to be nominated by the Senate. In this regard, it would be relevant to refer to sub-section (2) of Section 31 of the
Act relating to the constitution of Council which included the Minister in charge of technical education in the Central Government as ex-officio
Chairman, the Chairman of each of the Institute, the Director of each of the Institute, the Chairman of University Grants Commission, the Director
General of the Council of Scientific and Industrial Research, the Chairman of Indian Institute of Science, Bangalore, three persons to be nominated
by the Central Government, one person to be nominated by the All India Council for Technical Education, not less than three, but not more than
five, persons to be nominated by the Visitor and three Members of Parliament. This Council shall nominate four persons for the Board of
Governors. A combined reading of Sections 2, 4, 6, 10, 11 and 31 of the Act would show that the Legislatures have taken much care even while
they constitute the authorities of Institute namely, the Board of Governors and the Council, as the Institute is declared to be of national importance.
Coming to the powers as to the making of Statutes in terms of sub-section (1)(i) of Section 6, the Institutes have the power to frame Statutes
and Ordinances including the power to alter, modify or rescind the same. Such Statutes can be framed by the Board of Governors in exercise of
power conferred under sub-section (2)(c) of Section 13 of the Act. It is not in dispute that pursuant to the exercise of power, the Board framed
the Statutes including the service conditions of the staff. It would be a repetition to mention that the said Statutes do not empower the Institute to
proceed with the enquiry initiated against its employee after such employee had retired from service. That is the precise argument of Mr. N.G.R.
Prasad in contending that in the absence of any provision in the Statutes enabling the Institute to pursue further the enquiry proceedings after the
petitioner is allowed to retire, though without prejudice to the enquiry proceedings, the enqiry cannot be proceeded with. It is the submission of
Mr. K.R. Vijayakumar, learned counsel for the respondents that in terms of sub-section (1) of Section 13 of the Act, even in the absence of any
provisions in the Statutes, the Board is competent to exercise all the powers of the Institute.
In view of the rival submissions, it is to be now considered as to whether sub-section (1) of Section 13 empowers the Board to issue directions
by resolution to continue the enquiry proceedings after an employee had retired and in the absence of any provisions under the Statutes. Before
embarking upon the interpretation of sub-section (1) of Section 13, it would be relevant to consider the law on the subject. A Constitution Bench
of the Supreme Court of India in "" Union of India (UOI) and Another Vs. Hansoli Devi and Others, "", while considering the interpretation of
Section 28-A of the Land Acquisition Act (1 of 1894) with reference to the expression (had not made an application to the Collector u/s 18)
observed as follows:-
It is a cardinal principle of construction of Statute that when language of the Statute is plain and unambiguous, then the court must give effect to the
words used in the Statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more
consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson and Co. Ltd. 1955 (2) ALL ER 345 Lord Reid pointed out
as to what is the meaning of ""ambiguous"" and held that ""a provision is not ambiguous merely because it contains a word which in different context is
capable of different meanings and it would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is,
in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning."" It is
no doubt true that if on going through the plain meaning of the language of Statutes, it leads to anomalies, injustices and absurdities, then the court
may look into the purpose for which the Statute has been brought and would try to give a meaning, which would adhere to the purpose of the
Statute. Patanjali Sastri, C.J., in the case of Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, had held that it is not a sound
principle of construction to brush aside words in a Statute as being inapposite surplusage, if they can have appropriate application in circumstances
conceivably within the contemplation of the Statute. In Quebec Railway Light Heat and Power Co. v. Vandray AIR 1920 PC 181, it had been
observed that the Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the
legislature will not be accepted except for compelling reasons. Similarly, it is not permissible to add words to a Statute which are not there unless
on a literal construction being given a part of the Statute becomes meaningless.
The Constitution Bench also placed reliance on the following ruling by Tindal, C.J., in Sussex Peerage Case (1844) II Cl &F 85, which holds the
field even now namely, ""if the words of the Statute are in themselves precise and unambiguous, then no more can be necessary than to expound
those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver.
Recourse to construction is held to be permissible only in case of ambiguity, inconsistency or obscurity as held by the Supreme Court in
BHAVNAGAR UNIVERSITY v. PALITANA SUGAR MILLS PVT. LTD., AND OTHERS 2002 AIR SCW 4939"" in the following words:-
It is the basic principle of construction of Statute that the same should be read as a whole, then chapter by chapter, section by section and words
by words. Recourse to construction or interpretation of Statute is necessary when there is ambiguity, obscurity, or inconsistency therein and not
otherwise. An effort must be made to give effect to all parts of Statute and unless absolutely necessary, no part thereof shall be rendered
surplusage or redundant.
True meaning of a provision of law has to be determined on the basis of what provides by its clear language, with due regard to the scheme of law.
Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other
words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it
is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest
of the Statute.
While considering the power of the Court to place construction on a Statute, a Constitution Bench of the Supreme Court in "" Padmasundara Rao
and Others Vs. State of Tamil Nadu and Others, "" has cautioned as follows:-
Two principles of construction-one relating to casus omissus and the other in regard to reading the Statute as a whole-appear to be well settled.
Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the
four corners of the Statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a Statute or
section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so
that the construction to be put on a particular provision makes a consistent enactment of the whole Statute. This would be more so if literal
construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. ""An
intention to produce an unreasonable result"" said Danckwerts, L.J., in Artemiou v. Procopiou 1966 1 QB 878, ""is not to be imputed to a Statute if
there is some other construction available."" Where to apply words literally would ""defeat the obvious intention of the legislation and produce a
wholly unreasonable result"" we must ""do some violence to the words"" and so achieve that obvious intention and produce a rational construction.
(Per Lord Reid in Luke v. I.R.C. 1966 AC 557 where at p.577 he also observed: ""this is not a new problem, though our standard of drafting is
such that it rarely emerges.
According to the survey of the law settled by the Supreme Court on the interpretation of the Statute, when language of the Statute is plain and
unambiguous, the Court must give effect to the words used in the Statute and it would not be open to the Court to adopt a hypothetical
construction on the ground that such construction would be more consistent with the alleged object and policy of the Act. When the Statute reflects
a plain meaning without leading to anomaly or absurdities, then the Court must give only the literal meaning of the Statute without any further
interpretation. It is also well settled law that effort must be made to give effect to all parts of the Statute and unless absolutely necessary, no part
thereof shall be rendered surplusage or redundant. The true meaning of a provision of law has to be determined on the basis of what provides by
its clear language, with due regard to the scheme of law. The Court must also bear in mind that while interpreting a Statute an intention to produce
a reasonable result.
Based on the above principles of law on interpretation, let me now consider the provisions of sub-section (1) of Section 13 of the Act. In
exercise of power under sub-section (2) of Section 13, the Board has in fact framed the Statutes providing appointments of teaching and non-
teaching staff of the Institute and their terms and service conditions. Statute 13 relates to the terms and conditions of permanent employees of the
Institute. There is no dispute that the petitioner is a permanent employee of the Institute. It is also not in dispute that either in Statute 13 or in any
one of the provisions of the Statutes, a power is vested in the Institute to continue the disciplinary proceedings that was pending on the date when
an employee attained the age of superannuation and consequently retired from service. This position is also not disputed by the learned counsel for
respondents. In the light of the above factual position, whether the Board can trace its power to sub-section (1) of Section 13 to order continuance
of the disciplinary proceedings by way of resolution should be considered. The words employed in the said section is that ""subject to the provisions
of this Act, the Board of any Institute shall be responsible for the general superintendence, direction and control of the affairs of the Institute and
shall exercise all the powers of the Institute not otherwise provided for by this Act, the Statutes and the Ordinances, and shall have the power to
review the acts of the Senate."" This is a general power given to all the Institutes not only to the Institute in question, but also the Institutes declared
to be the institutions of national importance u/s 2 of the Act. Only in that context, the Legislature conferred a general supervisory power on all the
Institutes with further power to direct and control the affairs of the Institute. The reliance placed by the learned counsel for respondents is on the
second limb of sub-section (1) of Section 13 namely, ""shall exercise all the powers of the Institute not otherwise provided for in the Act, Statutes
and Ordinances."" By virtue of the powers to frame Statutes, the Board of Governors has also the power to alter, modify or rescind the same. In
the absence of a provision in the Statute for continuance of the enquiry proceedings after the delinquent employee had retired, the Board has to
exercise its power to amend the Statute empowering the continuance of such enquiry proceedings even after the retirement of the delinquent
employee. In this regard, the procedure to be adopted by the Board in either making the Statute or while making the amendment cannot be
disregarded. Section 27 provides the procedure as to how the Statutes should be made. Sub-section (1) of Section 27 relates to the first Statutes
of each Institute as declared u/s 2 of the Act to be framed by the Council constituted u/s 31 of the Act with the prior approval of the Visitor who is
none other than the Hon''ble President of India. After the Statutes are framed, a copy of the same shall also be laid as soon as may be before each
House of Parliament. Sub-sections (2) and (3) of Section 27 are further relevant for disposal of this case. As per sub-section (2) of Section 27, the
Board may, from time to time, make new or additional Statutes or may amend or repeal the Statutes. It is incumbent on the Board to obtain prior
approval of the Visitor for every new Statute or addition to the Statutes or in amending or repealing of a Statute. Sub-section (4) of Section 27 is
further very clear that inasmuch as the new Statute or a Statute amending or repealing an existing Statute is unless assented by the Visitor, shall
have no validity in the eye of law. This strict procedure contemplated under the Act cannot be viewed lightly in the case of either framing a Statute
or making any new Statute or addition to the Statutes or any amendment or repealing of a Statute. When the law provides for a particular
procedure to be adopted for either framing a new Statute or making addition to the Statutes or making the amendment to the Statute or repealing
of a Statute, the Board of Governors are mandated to follow the said procedure. Any other course adopted by the Board of Governors to add
something to the Statute without following the provisions of Section 27 would be outside the powers conferred by the Act.
In this background, second limb of the words employed in sub-section (1) of Section 13 are to be considered. According to the said section,
no doubt the Board shall also exercise all the powers of the Institute not otherwise provided for by the Act, Statutes and the Ordinances. The
powers of the Institute are enumerated u/s 6 of the Act, which includes only the power of framing Statutes or Ordinances or to alter or modify or
rescind the same. The said Section does not empower even the Institute to issue any direction to amend the Statute without reference to the
procedure to be followed u/s 27 of the Act. Further, it is to be seen that such power of the Board could be exercised only in matters which are not
provided by the Act, Statutes or Ordinances. This power is given to the Board where there are no provisions governing a particular field. Such
power is not intended to enable the Board to pass resolution to add something into the Statute especially when the Board has got power to amend
the Statute. If the interpretation sought to be put forth by Mr. K.R. Vijayakumar is accepted, the provisions of Section 27 and also the provisions
as to the power of the Board to make the Statutes under sub-section (2) of Section 13 would be meaningless. The power to frame Statutes is
conferred on the Board of Governors, constitution of which has been detailed in the earlier portion of the order including four persons having
special knowledge or practical experience in respect of education, engineering or science to be nominated by the Council. The constitution of
Council has also been referred to in the earlier portion of the order. The Council has been assigned a responsible task of nominating four persons
to the Board of Governors. The Board of Governors also constitute highly qualified academicians empowering to make Statutes. When the scheme
of the Act empowers the Board of Governors only to frame Statutes, the continuance of the disciplinary proceedings by way of a resolution would
certainly amount to bypassing of the provisions of Section 13 of the Act, which in my considered view, cannot be accepted. That is why the
Legislature while empowering the Board in the second limb of sub-section (1) of Section 13 to exercise all the powers of the Institute has
cautiously added the words ""not otherwise provided by the Act, Statutes and Ordinances."" The words so employed should be literally construed
to mean that only when there are no Statutes to deal with the disciplinary proceedings, the Board will have power to resolve to continue the
enquiry proceedings. It would otherwise mean that when the service conditions are governed by the Statutes, the Board has no power to add
something to the Statute to continue the disciplinary proceedings even after the retirement. Accordingly, I hold that sub-section (1) of Section 13
does not empower the Board of Governors to pass resolution to continue the disciplinary proceedings even after an employee had retired from
service, as such interpretation would be conferring of power on the Board to alter the service conditions without resorting to exercise of power to
alter the Statute in the manner contemplated u/s 27 of the Act.
The next question to be considered is as to whether the Board is entitled to continue the proceedings, as the petitioner was allowed to retire
from service without prejudice to the enquiry proceedings. The issue is not res integra. Similar question arose before a learned single Judge of this
Court in W.P. No. 11398 of 1994 with reference to the power of the Tamil Nadu Electricity Board to pursue the enquiry proceedings after the
retirement of the employee and in the absence of any regulations in this regard. That was also a case where the employee was allowed to retire
without prejudice to the right of the Board to continue the enquiry proceedings. The learned Judge repelling the contentions of the Board held that
even when the employee was allowed to retire without prejudice to the right of the Board to continue the enquiry proceedings, in the absence of
any rules/regulations, such enquiry cannot be continued. This judgment was taken on appeal and the same was affirmed in W.A. No.153 of 1995
by judgment dated 21.7.97. The Supreme Court also confirmed the said judgment by dismissing the appeals in Civil Appeal Nos. 3042 and 3043
of 1998 dated 5.3.2003. In fact, a similar question also came up for consideration before the Supreme Court in "" Bhagirathi Jena Vs. Board of
Directors, O.S.F.C. and Others, "". That was also a case where the employee was relieved by the Orissa Financial State Corporation without
prejudice to the claim of the Corporation. The question arose with regard to the continuance of disciplinary proceedings for the purpose of retiral
benefits payable to the employee. While considering the validity of the continuance of enquiry proceedings, placing reliance on Regulation 17 of the
Orissa State Financial Corporation Employee''s Provident Fund Regulations, 1959 and clause 3(c) of Regulation 44 of the Orissa State Financial
Corporation Staff Regulations, 1975, the Supreme Court held as follows:-
It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund
consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after
superannuation.
No other judgment, holding contrary view was cited. Hence, I am of the view that even when the Institute permitted the petitioner to retire without
prejudice to the enquiry, in the absence of any power under the Statute to continue the enquiry after the retirement, the respondent-Institute cannot
pursue the enquiry. Question is not on the point as to whether the retirement is conditional or not, but is one on the very power of the Institute to
pursue the enquiry. In the absence of power, merely because the petitioner was allowed to retire without prejudice to the enquiry a power which is
not available to the Institute cannot be conferred by such resolution.
For all the above reasons, I am of the considered view that the respondents cannot continue the disciplinary proceedings pursuant to the
impugned show cause notice dated 19.4.2000 after the petitioner was allowed to retire from service on 31.1.2000. In view of the same, the
impugned show cause notice dated 19.4.2000 is liable to be set aside. Accordingly, the same is set aside. However, in so far as the challenge to
the circulars dated 2.3.99 and 4.3.99, in the absence of challenge to the order of this Court in W.P. No. 8139 of 1999 dated 25.10.99 that too at
the instance of the petitioner himself, I am of the view that such a challenge cannot be accepted and consequently, the writ petition insofar as the
challenge to the circulars dated 2.3.99 and 4.3.99 is dismissed.
The writ petition is partly allowed to the extent indicated above. In view of the above order, the petitioner is entitled to all the terminal benefits
as if there are no enquiry proceedings pending and the respondents are directed to settle the same within a period of two months from the date of
receipt of a copy of this order. No costs. Consequently, W.P.M.P. Nos. 12015 and 12016 of 2000 are closed.