ORDER
Ramesh Ranganathan, J.
1. Proceedings of the 2nd respondent dated 27-6-2003, in compulsorily retiring the petitioner from service with a cut of 10% in his basic pension, and the consequential memo dated 27-6-2003 issued by the 1st respondent directing him to handover complete charge of his post, is impugned in this writ petition, as arbitrary, illegal and without jurisdiction.
2. Facts, to the extent necessary, are that the petitioner was initially appointed in the respondent-University as a Supervisor in August 1968, which post was later re-designated as an Assistant Engineer. He was promoted as a Junior Engineer in 1972 which post was subsequently re-designated as Assistant Executive Engineer. He was subsequently promoted as an Executive Engineer in March 1998. The petitioner was issued memo dated 26-11 -2002 informing him that he would be retiring from service, on attaining the age of superannuation, on 30-6-2003. Contending that he was entitled to continue in service till he attained the age of 60 years, the petitioner filed W.P.No. 11348 of 2003 and this Court passed interim orders directing the respondents to continue him in service till he attained the age of 60 years.
3. Earlier, Memo dated 11-6-2003 was issued calling upon the petitioner to show cause as to why punishment of compulsory retirement with 10% cut in pension should not be imposed on him for certain lapses. The petitioner submitted his reply thereto on 16-6-2003. Thereafter, the impugned proceedings dated 27-6-2003 was passed imposing on the petitioner, the punishment of compulsory retirement with 10% cut in his pension. This order is challenged on several grounds including that the Vice-Chancellor did not have the power to inflict a major punishment as he was not the appointing authority and it is the Board of Management which alone is competent to impose a major penalty, that neither a regular Vice-Chancellor nor the Board of Management was in office, that the in-charge Vice-Chancellor, who imposed the punishment, could neither be deemed to be a Vice-Chancellor under the Act nor was he conferred disciplinary powers under the statute, that punishment of compulsory retirement is not envisaged under the A.P. Agricultural University (Conditions of Service) Regulations, 1965, that the impugned proceedings were passed without application of mind and without considering the objections raised by the petitioner thereto, that two punishments of compulsory retirement and 10% cut in pension could not have been simultaneously imposed, that imposition of such punishment is not only illegal but also constitutes double punishment, that a copy of the report of the three man committee and the enquiry report, relied on in support of the charges, were not furnished to the petitioner and that the entire action initiated by the respondent was opposed to principles of natural justice and fair play.
4. A counter-affidavit is filed on behalf of the respondents by the Registrar (the 1st respondent). It is stated therein that while working as a Deputy Executive Engineer, the petitioner did not properly execute construction of the Girls hostel at the Agricultural College, Mahanandi, Kurnool District and though the hostel building was completed in 1998 it is not suitable to be occupied by students in view of the poor quality of construction. It is stated that the huge building has been left unutilized because of poor workmanship and faulty execution by the petitioner. Respondents would submit that a detailed enquiry was conducted, wherein full and fair opportunity was given to the petitioner to defend himself, that the Enquiry Officer held the charges levelled against the petitioner to have been substantiated and that the finding of guilt recorded by the Enquiry Officer was accepted by the competent authority who thereafter decided to inflict the punishment of compulsory retirement, duly taking into account the gravamen of the charges and the material on record. It is stated that 10% cut in pension would enable the University to recoup atleast a portion of the losses sustained due to improper execution of works, that similar punishment had also been imposed on Sri C.K. Mohan Rao, the then Executive Engineer and that Sri V. Purushotham, Junior Engineer, was also imposed a penalty. It is stated that the University had constituted a three man enquiry Committee headed by Sri V. Gopalakrishna, the then Controller, to conduct a preliminary enquiry regarding certain civil construction works of the University and, as the said enquiry committee had recommended a detailed enquiry, the matter was placed before the Board of Management, which decided to request the government to appoint an Officer, not below the rank of a Superintending Engineer, either from the Roads and Buildings Department or from the Irrigation Department to conduct a detailed enquiry against the engineering personnel of the University as well as the Government staff on deputation with the University. On the Government nominating Sri C. Vittal Rao, Superintending Engineer, Roads and Buildings, vide letter dated 01-03-2002, the University appointed him as the Enquiry Officer, vide proceedings dated 06-07-2002, to conduct a detailed enquiry into the execution of certain works, including construction of the Girls Hostel at Mahanandi, and asked him to submit a report within two months. It is stated that charges were framed against 12 individuals including the petitioner and two government employees, that Sri C.R. Sukumaran, Associate Dean, College of Engineering, Bapatla was appointed as the presenting Officer, that the enquiry was conducted during the months of October to December, 2002 and January and February 2003, that the petitioner, attended the enquiry, he was given full opportunity to defend himself and was permitted to examine all relevant documents. Respondents would deny existence of the report of the Quality Control Committee and submit that no report had been submitted to the University by the said Committee with regard to the above works executed by the petitioner. The petitioner’s allegation of bias against the three man committee, headed by Sri V. Gopalakrishna, is contended as baseless, since the committee, in addition to the Chairman, comprised of the Superintending Engineer, Roads & Buildings Department of the State Government, and a professor of the University. It is contended that no malicecan be attributed to a multi-member body more particularly when a technical expert, in the form of the Superintending Engineer of an independent organization, formed part of the committee. While stating that the Board of Management had constituted a Committee with some of its members and a member from the Jawaharlal Nehru Technological University, it is stated that this committee did not submit any report to the 1st respondent University. Respondents would deny the allegation that neither the Vice-Chancellor nor the Registrar had the power to inflict a major penalty as they were not appointing authorities and contend that the protection under Article 311(2) of the Constitution of India was not available to the petitioner. It is stated that the respondent-university had adopted the A. P. Civil Services (Classification, Control and Appeal) Rules 1991, and that construction of the Hostel Building is being monitored by the State Government, as the World Bank had made funds available to the AHRD. It is stated that officials of the respondent-university had to regularly keep the Board of Management informed of the developments including action initiated against officials who were responsible for the poor quality of construction, and when the matter was placed before it, the Board of Management resolved that appropriate action be taken against those responsible. It is stated that the plea of bias or malice cannot be looked into since the petitioner had not made such persons eo-nomine respondents, since the university had adopted the A.P. Civil Services (Classification and Control) Rules, the penalties and the procedure contemplated therein for imposing such penalty stood adopted, and as the petitioner had, during the course of enquiry, requested that the procedure prescribed under the Classification, Control and Appeal Rules, be followed, it was not open for him to contend that the penalties contemplated under the said rules are not applicable.
5. In the reply affidavit, reference is made by the petitioner, to the charge memo dated 2-8-2001, to contend that while it is stated therein that the enquiry would be conducted in accordance with the procedure laid down in Regulation 13 of the 1965 Regulations, both the enquiry held and the punishment imposed were in accordance with the ARCS (CCA) Rules, 1991 and were therefore vitiated. Petitioner would contend that the enquiry stood vitiated also for the reason that the enquiry officer did not take into account the Quality Control Committee report. According to the petitioner, the competent authority, (the Board of Management), did not apply its mind nor did it exercise its jurisdiction and that the impugned order passed by the Vice-Chancellor was without jurisdiction. Petitioner would deny the existence of an alternative remedy and submit that since the Board of Management is the competent authority to impose punishment, the question of preferring an appeal to the same authority did not arise.
6. During the pendency of the writ petition, the respondents filed W.P.M.P.No. 1519 of 2005, to permit them to bring on record the resolution of the Board of Management of the respondent University, in its 190th meeting held on 30-02-2004. In the affidavit filed in support of the W.P.M.P. it is stated that the Board of Management, at its meeting held on 9-5-2003, had considered the report of the Enquiry Officer in detail and had accepted the findings recorded therein and that the Vice -Chancellor of the University had been specifically authorized to conclude disciplinary proceedings against officials of the University. It is stated that after a new Board of Management was constituted, the matter was placed before it for ratification of the action taken earlier by the then Vice-Chancellor, under the authorization of the Board, and that the Board of Management at its 109th meeting held on 30-12-2004, had ratified the action taken by the then Vice-Chancellor in awarding punishment to various engineering staff. It is stated that the matter was found to be proper and correct and that the resolution passed by the Board of Management, at its 190th meeting held on 30-12-2004, has been communicated to the petitioner. It is also stated that the previous Board of Management had completed its term on 09-05-2003 and the new Board of Management was constituted on and from 16-10-2004.
7. Sri Y. Venkata Sastry, learned Counsel for the petitioner, would question the validity of the impugned order on the following grounds:
1. The Vice-Chancellor, who imposed the punishment, is not the competent authority and it is the Board of Management, the appointing authority, which is alone competent to impose punishment;
2. The rules do not provide for compulsory retirement as a penalty and as such this punishment could not have been imposed;
3. In any event the petitioner could not have been imposed two punishments, one of compulsory retirement and the second a 10% cut in pension;
4. The enquiry proceedings stand vitiated for violation of the rules of natural justice as the records sought for by the petitioner had not been furnished.
8. Learned Counsel would place reliance on Marathwada University v. Seshrao Balwant Rao Chavan (1989) 3 SCO 132; Gwalior District Co-operative Bank Ltd. v. Ramesh Chandra Mangal 1979 (2) SLR 464 Dharam Dev Mehta v. The Union of India 1980 (1) SLR 414 and S.C. Mehta v. Union of India, Delhi 1983 (3) SLR 714.
9. Sri Nuty Rammohan Rao, learned Counsel appearing on behalf of the respondent University, would place reliance on the proceedings dated 16-8-2001, issued by the Registrar of the University, wherein reference is made to the earlier proceedings dated 07-05-1974 whereby Fundamental Rules were sought to be applied to employees recruited by the University, whenever Statutes or Regulations governing the conditions of service of University employees did not contain provisions corresponding to those under the Fundamental Rules, and that the A.P CS (CCA) Rules, 1991, issued by the Government in G.O.Ms.No. 490 dated 08-08-1991, as amended from time to time, were being adopted by the University and that the amendments issued by the Government in future, to the CCA Rules, would automatically apply mutatis – mutandis to employees of the University. Learned Counsel, while conceding that the, A.P. Agricultural University Regulations, did not provide for the punishment of compulsory retirement, would submit that the said punishment is provided under the A.P. CS (CCA) Rules 1991. On the question of competence of the Vice-Chancellor to impose punishment, learned Counsel would submit that while the statutory rules do not specifically empower the Vice-Chancellor to impose punishment, the fact remains that when punishment was sought to be imposed neither was there a Board of Management in existence nor a regularly appointed Vice-Chancellor holding office, and in the absence of the rules and regulations prescribing any prohibition, the Vice-Chancellor, who is in over all charge of the University, was not precluded, in such circumstances, from imposing the punishment. Learned Counsel would further submit that, in any event, the Board of Management having ratified the action of the Vice-Chancellor, in its resolution dated 30-12-2004, the ratification would be deemed to have come into force with retrospective effect from the date on which the punishment was imposed and consequently the action of the Vice-Chancellor in imposing punishment, vide proceedings dated 27-06-2003, was in order. Learned Counsel would submit that punishment imposed on the petitioner of compulsory retirement with 10% cut in pension was only to recoup at least a portion of the losses which the University had sustained on account of the poor quality of construction, and cannot be said to be a double punishment. Learned Counsel, in support of his contention that imposition of such punishment is permissible, would rely on Commissioner of Plural Development v. A.S. Jagannathan On the question of documents not being supplied, learned Counsel would submit that it is only those documents relied upon by the enquiry officer, which are required to be furnished to the delinquent employee, and it is only if the relevance, of the other documents sought for, are explained by the charge-sheeted employee, would the enquiry officer be required to make such documents available. According to the learned Counsel, the preliminary enquiry report which the petitioner requested for did not form part of the enquiry nor was it relied upon by the University to support the charges framed against the delinquent employee and as such failure to furnish this report is of no consequence. Learned Counsel would submit that since the earlier committee had not even submitted its report to the University the question of making such a non-existent report available to the petitioner did not arise. On the allegation of bias, learned Counsel would submit that while a very high degree of proof was required to establish malice, the petitioner had not even chosen to implead the person against whom bias/malice was alleged as party eo-nomine in the writ petition.
10. The contention that the documents sought for were not furnished to the petitioner need not detain the Court. A preliminary enquiry report, not relied upon in the departmental enquiry, need not be furnished to the charge sheeted employee. State of Assam v. M.K. Das Further, only relevant documents and documents relied upon to prove the charge are required to be furnished. It is not even the case of the petitioner that the documents relied upon to prove the charge were not supplied to him. In the absence of relevance, of the documents sought for, being explained the delinquent is not entitled, as a matter of right, to contend that failure to supply documents, would vitiate the enquiry. The petitioner is required to show as to how his case was prejudiced on account of non-supply of the documents sought for. (State Bank of Patiala v. S.K. Sharma ). Since the petitioner has not stated as how he was prejudiced thereby, it cannot be said that non-furnishing of the documents would vitiate the disciplinary proceedings.
11. Respondent would contend that a copy of the committee report, sought for by the petitioner, was not available since no such report was submitted to the university. Since the report was not available with the university, as it was not even submitted to them, the question of supplying a copy thereof to the petitioner would not arise. The plea of malice or bias is also required to be rejected, since the petitioner has not chosen to implead Professor Gopala Krishna, against whom bias/ malice is alleged, as a party respondent eo-nomine in the writ petition. As held in State of Bihar v. P.P. Sharma the plea of malice is required to be rejected for failure to implead the party against whom malice is alleged as a respondent by name.
12. Before examining the contention that the punishment of compulsory retirement could not have been imposed since no such punishment is prescribed in the Regulations, it is necessary to refer to the rules in this regard. Regulation 13(iv) of the A.P. Agricultural University (Conditions of Service) Regulations 1964 reads as under:
The authority which may impose on an employee the penalties of (a) reduction to a lower rank in the seniority list or to a lower post or to a lower stage in time scale, or (b) recovery from pay of the whole or part of any pecuniary loss caused to the University by negligence or breach of orders or (c) withholding of promotion or (d) removal from service or the University which does not disqualify from future employment or (e) dismissal from the service of the University which ordinarily disqualifies from the future employment shall be the appointing authority.
13. The A.P. Agricultural University Employees (Manner of Appointment) Statutes 1966 reads thus:
Manner of appointment: (a) All appointments to posts, the maximum of the scale of pay of which is above Rs. 6380/- shall be mode by the Board of Management on the recommendation of a Selection Committee constituted by the Board of Management consisting of the Vice-Chancellor as its Chairman and three other members.
14. It is no doubt true that the punishment of compulsory retirement is not one amongst the punishments listed in Regulation 13(iv). However, Rule 9 of the A.P. Civil Services (Classification, Control & Appeal) Rules, 1991 prescribes compulsory retirement as a punishment.
Rule 9 of the A.P. CCS (CCA) Rules reads thus:
Rule
9: Penalties: The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a government servant namely-
Minor Penalties:
(i) censure;
(ii) withholding promotion
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the State Government or the Central Government or to a local authority or to corporation owned or controlled by the State or the Central Government, by negligence or breach of orders, while working in any department of the State or the Central Government, Local authority or Corporation concerned;
(iv) withholding of increments of pay without cumulative effect
(v) suspension, where a person has already been suspended under Rule 8 to the extent considered necessary;
Major penalties:
(vi) withholding of increments of pay with cumulative effect
(vii) reduction to a lower rank in the seniority list or to a lower stage in the time scale of pay or to a lower time scale of pay not being lower than that to which he was directly recruited or to lower grade or post not being lower than that to which he was directly recruited, whether in the same service or in another Service, State or Subordinate;
(viii) compulsory retirement
(ix) removal from service which shall not be a disqualification for future employment under the Government;
(x) dismissal from service which shall ordinarily be a disqualification for future employment under the Government;
Provided that, in every case in which the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or for bearing to do any official act is established, the penalty mentioned in Clause (ix) or Clause (x) shall be imposed,
Provided further that in any exceptional case and for special reasons to be recorded in writing, any other penalty may be imposed.
15. Since the university has adopted the AP CS (CCA) Rules, the punishment of compulsory retirement cannot be said to be a punishment not prescribed under the rules. It cannot also be lost sight of that an elaborate procedure for enquiry and imposition of punishment is prescribed under the AP CS (CCA) Rules. Since the procedure prescribed therein affords greater protection, to the delinquent employee, as compared to the regulations of the university, the action of the respondents in imposing the punishment of compulsory retirement, as available under the A.P. CS (CCA) Rules, cannot be faulted.
16. In so far as imposition of 10% cut in pension is concerned, as noted above, the University has, in effect, adopted the A.P. Revised Pension Rules.
Rule 9 of Revised Pension Rules 1980 reads thus:
Right of government to withhold or withdraw pension: (1) The State Government reserves themselves the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused, to the Government and to the local authority if, in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement:
Provided that Andhra Pradesh Public Service Commission shall be consulted before any final orders are passed:
Provided further that where apart of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the limit specified in Sub-rule (5) of Rule 45
(2)(a) The departmental proceedings referred to in Sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service;
Provided that where the departmental proceedings are instituted by an authority subordinate to the State Government, that authority shall submit a report recording its finding to the State Government;
(4) In the case of a Government Servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Sub-rule (2), a provisional pension as provided in Rule 52 shall be sanctioned.
(5) Where the State Government decided not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule-
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charge is issued to the Government servant or pensioner or if the Government servant has been placed under suspension from an earlier date, on which date; and
(b) Judicial proceedings shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made; and
(ii) in the case of civil proceedings, on the date the plaint is presented in the Court
7(a) When a Government servant dies before conclusion of the disciplinary proceedings, generally death abates all further proceedings. As such, when Government servant dies before conclusion of the disciplinary proceedings, the proceedings under Rule 9 of the Andhra Pradesh Revised Pension Rules, 1980 also abates. If any loss caused or misappropriated the Government amount by the deceased Government servant is established, in such cases, the disciplinary proceedings will not automatically abate and it is open to the Government to bring the legal representatives on record and conclude disciplinary proceedings for the purpose of recovery of the same.
(b) When disciplinary proceedings are concluded as per the procedure and Government servant/pensioner dies before receiving punishment order and any loss caused or misappropriated the Government amount due to his negligence or misconduct while he was in service, is established, the same can be recovered from terminal benefits admissible to the legal heirs. The recovery in such cases shall be from the terminal benefits i.e., Retirement Gratuity, Commuted Value of Pension, Encashment of leave.
(c) In cases of punishment of stoppage of increment without cumulative effect, which could not be implemented due to lack of service, or otherwise, the amount equal to the increments stopped, shall be recovered from the Retirement Gratuity of the employee;
Provided that the consultation with the Andhra Pradesh Public Service Commission shall not be necessary for taking action under this Sub-rule
17. It is not in dispute that, under the Revised Pension Rules, punishment of 10% cut in pension could have been imposed on the petitioner. The question as to whether the punishment of compulsory retirement with 10% cut in pension, amounts to double punishment and runs contrary to the rules, need not detain this Court, for Rule 9 of A.P. CS (CCA) Rules empowers imposition of punishment of compulsory retirement. In addition thereto, a 10% cut in pension, imposed by way of punishment, under the A.P. Revised Pension Rules, is not illegal. Reference may be made in this regard to A.S. Jagannathan (supra 5) wherein the Supreme Court held thus:
The Tribunal clearly had no jurisdiction to interfere with the punishment imposed by the disciplinary authority under the order of 4-6-1991. The Tribunal has purported to pass the order on the ground that three punishments cannot be imposed for the same charge. Now, the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules prescribe various penalties that may be imposed under Rule 8. One of the penalties under Rule 8 is of withholding of increments. Another penalty which can be imposed under Rule 8(v)(a) is recovery from pay of the whole or part of any pecuniary loss caused to the State Government by negligence or breach of orders. Under the Tamil Nadu Pension Rules, Rule 9(1)(b), such pecuniary loss can also be recovered from the pension of the employee if the pecuniary loss is caused by negligence or grave misconduct while in service and the employee has been found guilty of such misconduct or negligence. In the present case, the disciplinary authority has clearly found that there were serious charges against the respondent which were established against him in a disciplinary enquiry which was properly conducted. The disciplinary authority has rightly observed that looking to the serious nature of the charges proved, a minor punishment of only stoppage of two increments without cumulative effect has been imposed on the respondent by taking a lenient view since he is about to retire. The order for recovery of the loss caused on account of the respondent’s negligence and misconduct is also permissible under the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules as also under the Tamil Nadu Pension Rules, the former permitting recovery from pay and the latter permitting recovery from pensionary benefits after retirement. The Tribunal is wrong in holding that if an order is passed for recovery of the amount lost from the employee, no punishment can be imposed on him. The disciplinary authority, in the present case, was entitled to impose the punishment of stoppage of two increments without cumulative effect. At the time of passing the final order, the disciplinary authority was also entitled to pass order relating to the suspension period pending enquiry. It has directed that the period during which the respondent was under suspension be treated as service period but without pay. The order must be read as a whole. In the present case, the disciplinary authority has awarded punishment and given directions looking to the nature of the charges proved. The Tribunal was not entitled to interfere with the punishment so accorded.
18. As has been stated by the respondent, in their counter affidavit, the 10% cut in pension was imposed only with the intention of recouping a portion of the loss sustained by the university on account of the faulty construction of the hostel building. In such circumstances, imposition of punishment of compulsory retirement with 10% cut in pension can neither be said to be illegal nor without jurisdiction. Imposition of such punishment is not contrary to the rules nor does it, as contended by Sri Y. Venkat Sastry, learned Counsel for the petitioner, amount to double jeopardy. The petitioner has not been imposed punishment twice for the same offence. He has been imposed two separate punishments under the A.P. CS (CCA) Rules and under the A.P. Pension Rules. This contention is, therefore, also liable to be rejected.
19. Now the question as to whether the Vice-Chancellor was competent to impose the punishment. Regulation 13(iv) of the A.P. Agricultural Universities (Conditions of Service) Regulations, provides that the authority which may impose penalty on an employee is the appointing authority. Under the 1966 Statutes, all appointments to posts, the maximum of the scale of pay of which is above Rs. 6,380/-, shall be made by the Board of Management. It is not in dispute that the maximum scale of pay of the petitioner is above Rs. 6,380/- and consequently it is the Board of Management which is the appointing authority. It is also not in dispute that, on the date on which the petitioner was imposed punishment of compulsory retirement, neither the Board of Management nor a regular Vice-Chancellor were in office and it was the in-charge Vice-Chancellor of the University who had imposed the punishment of compulsory retirement on the petitioner herein.
20. Sri Y. Venkata Sastry, learned Counsel for the petitioner, would submit that the power to impose the punishment, as prescribed under the Statutory Rules, cannot be delegated. He would rely on Ramesh Chandra Mangal (supra 2), wherein the Supreme Court held thus:
We would agree with the Board of Revenue that the order passed by S.P. Jain was liable to be struck down as he was not competent to pass the order of dismissal against the respondent No. 1. It is undisputed that only the Board of Directors of the Bank was competent to dismiss the respondent No. 1. The Board of the Bank had been superseded and all its powers at the time were vested in the M.P. State Co-operative Bank Ltd. Shri S.P. Jain was appointed as Officer-in-charge to manage the affairs of the Bank by the Madhya Pradesh State Co-operative Bank Ltd. It cannot be said that S.P. Jain stepped into the shoes of the Board of Directors of the Bank. After supersession it was the M.P. State Co-operative Bank who became the Officer-in-charge and would be said to have stepped into the shoes of the Board of Director. S.P. Jain was merely a delegate of the M.P. State Cooperative Bank Ltd. The power of dismissal exercised by S.P. Jain could not be delegated to him and therefore the order….
21. In Ramesh Chandra Mangal (supra 2), the Board of Directors, which was competent to impose the punishment, had been superseded by the M.P. Co-operative Bank which in turn had appointed one Sri S.P. Jain, as its delegatee, to manage the affairs of the bank. The Supreme Court rejected the contention that Sri S.P. Jain had stepped into the shoes of the Board of Directors of the Bank and held that after supersession, it was the M.P. State Co-operative Bank which had stepped into shoes of the Board of Directors, and that Sri S.P. Jain, as its delegatee, could not exercise the power of dismissal. The contention of the respondents, in the present case, is however different. While conceding that it is the Board of Management, which is the competent authority to impose a punishment on the petitioner, it is stated that in the absence of the Board of Management being in office, disciplinary functions of the University cannot be permitted to come to a stand still and in such a situation the Vice-Chancellor, who is in over all charge of the University, must be held to have the power to impose punishment.
22. In Dharma Dev Mehta (supra 3) the Supreme Court held thus:
The most significant part of the rule states, after setting out alternative authorities, that the appointing authority is one out of these four categories who is the highest. This is emphatically brought out by the expression “whichever authority is the highest”. There is no doubt that among the four classes of authorities listed under Rule 2(a), the one falling under Sub-rule (iii) viz. Comptroller and Auditor General (in the present case) is the highest. It evidently follows that the order of retirement, to be legal, must be issued by the Comptroller and Auditor General, but actually the impugned order of retirement was issued by the Director of Commercial Audit. In fact the order of retirement runs thus:
Whereas the Director of Commercial Audit is of the opinion that it is in the public interest to do so….
Obviously the Director of Commercial Audit is a lesser official, the conclusion is, therefore, inescapable that the compulsory retirement is contrary to law.
The High Court, in its extensive judgment, considered the scheme of the rules and, indeed, referred to the point mentioned above, but after highlighting this question as one most emphasized by the appellant, has slurred over the point and proceeded to discussion of other issues. We are concerned with the vital–perhaps the fatal–aspect of the order which has not received due attention at the hands of the High Court. In this view, on account of the contravention of Fundamental Rule 56(j), read with Rule 2(a) of the (CCA), we are constrained to come to the conclusion that the retirement is illegal.
23. In Dharam Dev Mehta (supra 3), the rules prescribed four categories of alternative authorities and that the appointing authority should be one, amongst the four categories, whichever is the highest. Since the punishment imposed, was by an appointing authority who was not the highest, the Supreme Court held that such an authority could not have imposed the punishment on the delinquent employee. This judgment also has no application to the facts of the present case.
24. In S.C. Mehta (supra4), the Supreme Court held thus:
The Managing Director was competent to impose the penalties specified in Clauses (i) to (iv) of Regulation 54. They are all minor penalties. Minor penalties he could inflict. So the Managing Director was competent to institute the disciplinary proceedings though he had no power to impose any of the penalties specified in Clauses (v) to (ix) of Regulation 54. I have, therefore come to conclusion that the institution of disciplinary proceedings is not bad. What is bad is the infliction of the major penalty of compulsory retirement by the Managing Director. He had no power to compulsorily retire the petitioner. Only the Executive Committee could do it. The proceedings after the completion of the report by the inquiry officer in each of the three inquiries are vitiated. The vice is that the Managing Director considered the report of the inquiry officer in each of the three cases and inflicted the punishment of compulsory retirement on S.C. Mehta. This he could not do. From that stage the Executive Committee comes on the scene. The report had to be considered by them. They had no deal with the matter. They have to determine the guilt of the man. They may agree with the report. They may disagree with it. The disciplinary authority is free to differ from the findings of the inquiry officer and come to its own conclusions and the evidence on record. It may direct afresh inquiry if it finds that the inquiry has been defective. On the matter of punishment the punishing authority may award a lesser punishment if it finds that the punishment of compulsory retirement is too excessive and harsh in the circumstances of the case. The Executive Committee may decide to proceed with these cases. They may not. If they find the man guilty they have to give him second opportunity and ask him to say what he has to say on the penalty which they propose. Both matters guilt and punishment are in their domain. They are outside the powers of the Managing Director. This is the fatal flaw in this case….
25. In S.C. Mehta (supra 4) the Managing Director was competent to institute disciplinary proceedings and to impose minor penalties but had no power to impose major penalties, which power was vested in the executive committee. The Supreme Court held that since the Managing Director was not competent to impose a major punishment, imposition by him of the punishment of compulsory retirement was illegal. In the present case, it is the Board of Management which is the appointing authority and has the power to impose a major penalty on the petitioner. The Vice-Chancellor, under the rules, has not been conferred power to impose such a punishment. The question however is, in the absence of the Board of Management being constituted, could the Vice-Chancellor have imposed the major penalty of compulsory retirement on the petitioner.
26. In this context it is necessary to refer to the provisions of the A.P. Agricultural University Act, 1963 in this regard. Section 2(d) defines ‘authority’ to mean any Authority of the University specified in Section 18. Section 2(e) defines the ‘board’ to mean the Board of Management of the University, Section 2(i) defines ‘prescribed’ to mean prescribed by the statutes and under Section 2(o) ‘university’ is defined to mean the Andhra Pradesh Agricultural University constituted under Section 3. Under Section 3(1) there shall be constituted in, and for, the State of Andhra Pradesh, a University by the name of the Andhra Pradesh Agricultural University, which shall consist of a Chancellor, a Vice-Chancellor, a Board of Management and an Academic Council. Under Section 3(2), the University shall be a body corporate having perpetual succession and a common seal and shall sue and be sued by the said name. Section 6 relates to the powers of the University and there under such powers include the power to create administrative, ministerial and other necessary posts and to make appointments thereto. Section 9 defines the officers of the university to include under Sub-section (ii), the Vice-Chancellor. Section 12 relates to powers and duties of the Vice-Chancellor and under Sub-section (1), the Vice-Chancellor shall be the academic head and principal executive officer of the University and shall, in the absence of the Chancellor, preside at any convocation of university. Sub-section (2) requires the Vice-Chancellor to ensure faithful observance of the provisions of the Act and the statutes and he may exercise all powers necessary for this purpose. Sub-section (6) thereof reads as under:
Subject to the control of the Chancellor, in any emergency, which, in the opinion of the Vice-Chancellor, requires, immediate action to be taken, he shall take such action as he deems necessary, and shall at the earliest opportunity intimate the action taken to the officer, authority or other body who or which in the ordinary course would have dealt with the matter.
27. Under Sub-section (10), the Vice-Chancellor shall exercise such other powers as may be prescribed. Among the authorities of the university, specified in Section 18, is the Board of Management. Section 19 relates to constitution of the Board and Section 20, the powers and functions of the Board and under Sub-section 1 (b) thereof, the Board shall exercise and perform the powers and functions of appointing employees of the university, as may be prescribed, on the recommendation of the selection committee constituted under Section 32. Section 38 relates to statutes and subject to the provisions of the Act, the statutes may provide for several matters including under subsection (u), the conditions of service, remuneration and allowances, including traveling and daily allowances, to be paid to officers, teachers and other persons employed under the University. Section 39 prescribes as to how the statute should be made. Section 40 relates to regulations and under Sub-section (1) thereof, the authorities may make regulations consistent with the Act and the statutes for all or any other matters which by the Act and the statutes are to be provided for by the regulations and also for any other matter solely concerning such authorities and not so provided. Sub-section (3) thereof, empowers the Board to direct amendment, in such manner as it may specify, of any regulation made under Section 40 or the annulment of any regulation made there under by any authority. Section 44 relates to delegation of powers of the Board and reads thus:
Delegation of powers of the Board:
The Board may by statutes made in this behalf, delegate to any officer or authority of the university any of the powers conferred on it by or under this Act, to be exercised by such officer or authority, subject to such restrictions and conditions as may be specified in such statutes.
Notwithstanding anything in the Principal Act-
(a) the members of the Board and the Academic council constituted and functioning before the commencement of this Act, shall continue to be such members and function only until a new Board or Academic Council, as the case may be, is reconstituted in accordance with the provisions of the Principal Act as amended by this Act.
(b) On the reconstitution of such new Board or Academic Council in accordance with the provisions of the Principal Act as amended by this Act, the members of the Board of Academic Council, as the case may be, holding office immediately before such reconstitution, shall cease to be such members
28. The powers and duties of the Vice-Chancellor are those enumerated in Section 12. He is also empowered to exercise such other powers as may be prescribed by statutes. As noted above, as Regulation 13(iv) provides that the appointing authority shall impose penalties on employees drawing a maximum scale of pay of Rs. 6380A, in which grade the petitioner was admittedly in, it is the Board of Management which is the appointing authority.
29. On a conjoint reading of the regulations and the statutes, it is the Board of Management as the appointing authority, which is empowered to impose punishment on employees in the grade in which the petitioner belongs. Neither the Act nor the Statutes | confer on the Vice-Chancellor the power to impose punishment.
30. The power exercised by the Vice-Chancellor is not referable to Sub-section (6) of Section 12 also. There under, the Vice-Chancellor is required to form an opinion that the situation is one of emergency which requires immediate action to be taken. This opinion of the Vice-Chancellor is subject to the control of the Chancellor. It is not even the case of the respondents herein that the situation was one of emergency, which required immediate action. While it is true that according to the respondents, the petitioner was due to retire on 30-6-1993, the fact remains that under the revised pension rules, which are made applicable to the university, disciplinary action could have been taken even after an employee of the University had retired from service. Section 12(6) has therefore no application.
31. Under Section 44, the Board of Management is empowered to delegate any of its powers to any officer of the university only by statutes. It is not in dispute that the statutes of the respondent University do not provide for such a delegation. Thus, the Vice-Chancellor, under the Act, Statutes and Regulations, has not been conferred the power to impose punishment on employees in the cadre to which the petitioner belongs. While this is not disputed, Sri Nuty Ramamohan Rao, learned Counsel for the respondents, would submit that the Vice-Chancellor, being the Principal Executive Officer under Section 12(1) of the Act, is empowered to impose punishment, in the absence of any prohibition. I am afraid I cannot agree. Where statutory provisions govern the field, action can be taken only in accordance with such provisions and not contrary thereto. It is well settled that when power is given under a Statute to do a certain thing in a certain way, the thing must be done in that way or not at all. (Nazir Ahmad v. Kind Emperor AIR 1936 PC 253, Gujarat Electricity Board v. Girdharlal Motilal State of Gujarat v. Shantilal Mangaldas ). Since the power to impose punishment has been specifically prescribed by the provisions in the Statute, and the Regulations, only on the Board of Management and not on any other officer, it is only the Board of Management which could have imposed punishment on the petitioner.
32. The next question is as to whether the action of the Board of Management, pursuant to its resolution dated 30-11 -2004, in ratifying the action of the university, would result in validating the earlier order of punishment dated 27-6-2003. Since the Act confers on the Board of Management disciplinary powers, it must be exercised only by the Board and cannot be exercised by the Vice-Chancellor, unless such a power is specifically delegated. Further, such a power of delegation must be specifically provided for under the A.P. Universities Act.
33. Sri N. Ramamohan Rao, learned Counsel for the respondents, would rely on Punjab University v. V.N. Tripathi wherein the Supreme Court held thus:
…On the basis of the above provision, it is submitted that the Registrar is in charge of the administration of the University and represents the University in all legal proceedings. This right of the Registrar is ever available except in cases where there is a resolution to the contrary passed by the Senate. It entitles him to even file an appeal. The High Court and the courts below have not accepted this contention of the appellant and rightly so. The Registrar no doubt represents the University in all legal proceedings, but it does not mean that he enjoys the authority to institute any suit or appeal or any other legal proceedings on his own. The decision to initiate any legal proceedings has to be taken by the authority competent to do so and thereafter in such proceedings, for or against the University, the Registrar would represent the University. While representing the University, it would be open to the Registrar to take all incidental steps necessary for prosecution of the proceedings, but Section 21 cannot be relied upon by the appellant to contend that the Registrar would be entitled to initiate the legal proceedings on his own. This contention raised before us, thus fails.
It has next been submitted on behalf of the appellant that on the recommendation of the Syndicate, the Senate of the University passed a resolution on 29-9-1991 which reads as follows:
The recommendations of the Syndicate contained in Item 23 on the agenda were read out, and unanimously approved i.e.:
23. That the Registrar/Vice-Chancellor be authorised to sue or file an appeal in the court (under Regulation 10.2 at p. 32 of the P.U. Cal., Vol. I, 1989).
That the action taken by the Registrar/ Vice-Chancellor in cases where suits had already been filed or appeals preferred by them stood ratified.
On the basis of the above resolution, it is submitted that the action of the Registrar in filing the appeals stands ratified, hence, the plea of the respondents that the appeals are incompetent has no force. Learned Counsel for the respondent submits that the Senate of the University is the main body invested with powers of entire management of the affairs of the University in accordance with the statutes, rules and regulations in force. This would also include powers to initiate legal proceedings as well. It is further submitted that under Regulation 10.2 of the Regulations of Punjab University, the Senate can delegate its function to those authorities as mentioned in the said regulation and the Registrar is not one of the authorities to whom the delegation could be made. Therefore, it is submitted that the High Court was right in holding that the action of the Registrar in filing the appeal was void and that being the position his action in filing the appeal could not be ratified. In support of the above contentions, he has relied upon the decision reported in Marathwada University v. Seshrao Balwant Rao Chavan (1989) SCC (L&S) 436. This case, in our view, will not help the respondent. The Executive Council was competent to dismiss an officer of the University. On receipt of an inquiry report against the officer, the Executive Council resolved to give full power to the Vice-Chancellor to take the decision on the report. The Vice-Chancellor instead of acting on the basis of the inquiry report, appointed another inquiry officer and on the basis of the second inquiry report, dismissed the officer of the University. The Executive Council sought to ratify the action of the Vice-Chancellor in passing the order of dismissal but the Court did not accept the same mainly on two grounds, that the Vice-Chancellor could pass any order on the basis of the report supplied by the Executive Council but he could not appoint another inquiry officer and act on the basis of the second report. And secondly, the delegation of the power under the statute was subject to approval by the Chancellor which was lacking in the case, hence, the action of the Vice-Chancellor was held to be void ab initio and no amount of ratification could validate the order. The case pertains to the realm of disciplinary proceedings and dismissal of an officer of the University by the authority competent under the enactment. The case stands on a different footing. The learned Counsel for the appellant places reliance upon a case reported in Jugraj Singh v. Jaswant Singh In this case the act of the holder of power of attorney in transaction of sale, including presentation of the deed before the Registrar, at a time when the power of attorney did not authorise him to present the deed for registration but the act was ratified in the subsequent power of attorney. It was held that the ratification was valid and relates back to the date of original act.
The resolution dated 29-9-1991 is in two parts. The first part deals with the delegation of the powers to the Registrar/ Vice-Chancellor authorising them to sue or file an appeal under Regulation 10.2 of the Regulations of Punjab University. The other part pertains to the suits or appeals which have already been filed by the Registrar/Vice-Chancellor that act of filing of the appeals has been ratified. The first part thus deals with delegation of the power for acts to be done in future. The other part is not delegation of power, but ratifying the action, which has already been taken by the authorities mentioned therein by act of filing the appeals. It has already been noticed that the Registrar under Section 21 of the Punjab University Act, 1947 is authorised to represent the University in all legal proceedings, except where there is a decision of the Senate to the contrary. While representing the University, in view of the provisions under Section 21 of the Punjab University Act, the Registrar would obviously be taking several steps in prosecution of the legal proceedings. The Registrar would not be totally a stranger in the matters relating to legal proceedings in the court. In this background if the Registrar filed the appeal, against the decision of the trial court, which had gone against Punjab University though strictly speaking exceeded his authority, but his action in having filed the appeals was later on ratified by the competent authority by resolution dated 29-9-1991. The Registrar is a responsible officer of the University and has statutory powers under Section 21 of the Act to represent the University in legal proceedings. Had the Senate not ratified the act of the filing of the appeal, it would of course have been a different matter, but not thereafter. We also find no substance in the submission made on behalf of the respondent that the ratification came very late. In our view, it would not have any material bearing on the fact of ratification of the action of the Registrar in filing the appeals. The ratification has the effect of relating back to the time when the action was taken without authority. Despite the ratification by the competent authority, refusal to examine the matter on merits, would in no way serve the ends of justice. It would only be hankering to the technicalities rather than to be concerned with the intent and the substance….
34. In State (Anti-Corruption Branch) v. R.C. Anand (Dr) the Supreme Court held thus:
We find from the judgment of the High Court that it proceeded on the premise that the sanctioning authority is to apply its own independent mind, and it was applied by the President and he sought for ratification by the Governing Body. The approach is clearly erroneous. The sanctioning body was not the President and it was the Governing Body. This position is fairly accepted by the learned Counsel for Respondent 1 and cannot be disputed in the teeth of specific provisions contained in Schedule II to the statutory Regulations. But according to him since the President had expressed his views, for taking a different view, reasons should have been indicated. Such pleas clearly are without any substance. When the authority competent to accord sanction is the Governing Body under the statutory Regulations and that body, as in this case, takes a decision there was no necessity for recording reasons to differ from the view expressed by the President who had legally no role to play. The allocation of powers distinctly made by the statutory Regulations earmarking their own fields, subjects and topics cannot be legitimately ignored, on any assumptions or baseless presumptions. As long as the President had no individual role to play in matters exclusively earmarked and allocated to the Governing body and the decision of the Governing Body as that of any body has to be a collective one, neither could the President dictate what and how the Governing Body has to exercise its powers nor is the Governing Body obligated in any manner to deal with and give reasons to differ from the view expressed by the President, which, as noticed above, he could not have in the light of the statutory Regulations themselves. There is no justification in law or any principle of construction to import any such restriction on the independent exercise of power by the earmarked authority on its own under the Regulations. The President cannot impede or foreclose the liberty of the Governing Body by expressing his view or by passing even a provisional order subject to ratification, wherein under the statutory Regulations, he had none, at all.
Ratification is the noun of the verb “ratify”. It means the act of ratifying, confirmation and sanction. The expression “ratify” means to approve and accept formally. It means to conform, by expressing consent, approval or formal sanction. “Approve” means to have or express a favourable opinion of, to accept as satisfactory. In the instant case, there was no question of any ratification involved as wrongly assumed by the High Court….
35. The word ‘ratify’ means the act of confirmation or sanction. Since the order of the Vice-chancellor in imposing the punishment is illegal, the question is whether the Board of Management could have ratified such an illegal act and as to whether such a ratification would have retrospective effect and render the illegal order, passed on 27-6-2003, legal,
36. In V.N. Tripathi (supra 12), the regulations authorized the Registrar/Vice-chancellor to sue or file an appeal. The regulations also empowered the Senate to delegate its functions to the authorities mentioned therein, which included the Registrar. The Supreme Court held that since the Registrar was authorized to represent the university in legal proceedings, his act of filing an appeal against the decision of the trial court which had gone against the university, though strictly was in excess of his authority, since his action was later ratified by the competent authority, the ratification would have the effect of relating back to the time when the action was taken without authority. This judgment has no application to the facts of the present case. As noticed earlier, in V.N. Tripathi (supra 12), the regulations empowered the Senate to delegate its functions to the Registrar. In the present case, Section 44 of the Act empowers the Board of Management to delegate its powers only by way of statutes. It is not in dispute that the power was not delegated in such a manner. In the absence of a valid delegation, subsequent ratification, of the earlier action of the Vice-Chancellor, by the Board of Management would neither have retrospective effect nor would it validate the illegal action of the Vice-Chancellor in imposing the punishment, vide proceedings dated 27-6-2003.
37. In S.B.R. Chavan(supra 1), a question similar to the one which has arisen in the present case had come for consideration, the question was as to whether the Executive Council could have delegated disciplinary powers to the Vice-chancellor. The Apex Court, on examination of the provisions of the Act, held that since the delegation was not in conformity with the statutory regulations, it did not confer power on the Vice-Chancellor to take action against the delinquent employee. The Supreme Court held thus:
…The Vice-Chancellor in every university is thus the conscience keeper of the University and constituted ruler. He is the principal executive and academic officer of the University. He is entrusted with the responsibility of overall administration of academic as well as non-academic affairs. For these purposes, the Act confers both express and implied powers on the Vice-Chancellor. The express powers include among others, the duty to ensure that the provisions of the Act, statutes. Ordinances and Regulations are observed by all concerned [Section 11(3)]. The Vice-Chancellor has a right to regulate the work and conduct of officers and teaching and other employees of the University [Section 11(6)(a)]. He has also emergency powers to deal with any untoward situation [Section 11(4)]. The power conferred under Section 11(4) is indeed significant. If the Vice-Chancellor believes that a situation calls for immediate action, he can take such action as he thinks necessary though in the normal course he is not competent to take that action. He must however, report to the concerned authority or body who, would, in the ordinary course, have dealt with the matter. That is not all. His pivotal position as the principal executive officer also carries with him the implied power. It is the magisterial power which is, in our view, plainly to be inferred. This power is essential for him to maintain domestic discipline in the academic and non-academic affairs. In a wide variety of situations in the relationship of tutor and pupil, he has to act firmly and promptly to put down indiscipline and malpractice. It may not be illegitimate if he could call to aid his implied powers and also emergency powers to deal with all such situations.
…Counsel for the appellant argued that the express power of the Vice-Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal. Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under Section 24(1)(xxix) of the Act. It is, therefore, futile to contend that the Vice-Chancellor can exercise that power which is conferred on the Executive Council. It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury’s Laws of England (Vol. I, 4th edn. para 32) summarises these principles as follows:
32. Sub-delegation of powers.–
In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind.
The counsel for the appellant next submitted that the Executive Council in the instant case had delegated its disciplinary power to the Vice-Chancellor and the Act provides for such delegation. In support of the contention he relied upon the following resolution of the Execution Council:
Full power be given to the Vice-Chancellor to take a decision on this question and the Vice-Chancellor informed the Executive Council that he will take decision in about a month. On this decision, Shri Gangadhar Pathrikar gave his opinion that the Executive Council should take a decision on the note dated 16-1-1979 submitted by him and other two members and since it was not accepted, he does not agree with the above decision.
This resolution, in our opinion, is basically faulty at least for two reasons. It may be recalled that the Executive Council without considering the report of Mr. Chavan, wanted the Vice-Chancellor to take a decision thereon. It may also be noted that the Vice-Chancellor was present at the meeting of the Executive Council when the resolution was passed. He was given “full power to take a decision” which in the context, was obviously on the report of Mr. Chavan, and not on any other matter or question. He said that he would take a decision in about a month. In our opinion, by the power delegated under the resolution, the Vice-Chancellor could either accept or reject the report with intimation to the Executive Council. He could not have taken any other action and indeed, he was not authorised to take any other action.
The other infirmity in the said resolution goes deeper than what it appears. The resolution was not in harmony with the statutory requirement. Section 84 of the Act provides for delegation of powers and it states that any officer or authority of the University may by order, delegate his or its power (except power to make Ordinance and Regulations), to any other officer or authority subject to provisions of the Act and statutes. Section 24(1)(xli) provides for delegation of power by the Executive Council. It states that the Executive Council may delegate any of its power (except power to make Ordinances) to the Vice-Chancellor or to any other officer subject to the approval of the Chancellor. The approval of the Chancellor is mandatory. Without such approval the power cannot be delegated to the Vice-Chancellor. The record does not reveal that the approval of the Chancellor was ever obtained. Therefore, the resolution which was not in conformity with the statutory requirement could not confer power on the Vice-Chancellor to take action against the respondent.
This takes us to the second contention urged for the appellants. The contention relates to the legal effect of ratification done by the Executive Council in its meeting held on December26/27, 1985 The decision taken by the Executive Council is in the form of a resolution and it reads as follows:
Considering the issues, the Executive Council resolved as follows:
1. The Executive Council at its meeting held on 22-3-1979, had by a resolution given full authority to the Vice-Chancellor for taking further proceedings and decision in both the cases of the defaulting officers.
2. In exercise of above authority, the Vice-Chancellor appointed an Inquiry Officer and as Suggested by the Inquiry Officer issued show-cause notices, obtained replies from the officers and lastly issued orders for terminating their services.
It was further resolved that–
(i) There has been no inadequacy in the proceedings against both the officers;
(ii) The punishment ordered against both the officers is commensurate with the defaults and allegations proved against both the officers; and
(iii) The Executive Council, therefore, wholly, endorses the actions taken by the then Vice-Chancellor against both the officers.
By this resolution, we are told that the Executive Council has ratified the action taken by the Vice-Chancellor. Ratification is generally an act of principal with regard to a contract or an act done by his agent. In Friedman’s Law of Agency (5th edn.) Chapter 5 at p. 73, the principle of ratification has been explained:
What the ‘agent’ does on behalf of the ‘principal’ is done at a time when the relation of principal and agent does not exist: (hence the use in this sentence, but not in subsequent ones, of inverted commas). The agent, in fact, has no authority to do what he does at the time he does it. Subsequently, however, the principal, on whose behalf, though without whose authority, the agent has acted, accepts the agent’s act, and adopts it, just as if there had been a prior authorisation by the principal to do exactly what the agent has done. The interesting point, which has given rise to considerable difficulty and dispute, is that ratification by the principal does not merely give validity to the agent’s unauthorised act as from the date of the ratification: it is antedated so as to take effect from the time of the agent’s act. Hence the agent is treated as having been authorised from the outset to act as he did. Ratification is ‘equivalent to an antecedent authority’.
In Bowstead on Agency (14th edn.) at p. 39 it is stated:
Every act whether lawful or unlawful, which is capable of being done by means of an agent (except an act which is in its inception void) is capable of ratification by the person in whose name or on whose behalf it is done…. The words ‘lawful or unlawful’, however, are included primarily to indicate that the doctrine can apply to torts. From them it would follow that a principal by ratification may retrospectively turn what was previously an act wrongful against the principle, e.g. an unauthorised sale, or against a third party, e.g. a wrongful distress, into a legitimate one; or become liable for the tort of another by ratifying.
These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified.
38. Principles of ratification are inapplicable to exercise of powers conferred under statutory provisions, the statutory authority cannot travel beyond the power conferred and any action without power has no legal validity, is ab initio void and cannot be acted upon. In V.N. Tripathi (12 supra), on the earlier judgment in S.B.R. Chavan (supra 1) being brought to its notice, the Supreme Court held that S.B.R. Chavan (supra 1) pertains to the realm of disciplinary proceedings and dismissal of an officer of the university by an authority not competent under the enactment and thus stood on a different footing. It is the judgment of the Supreme Court in S.B.R. Chavan (supra 1) which squarely applies to the facts of the present case and not the judgment of the Apex Court in V.N. Tripathi (supra 12).
39. This contention is also to be rejected on another ground. The resolution of the Board of Management in its 187th meeting held on 9-5-2003 reads as under:
After thorough discussion, it was resolved to accept the findings and recommendations of the Enquiry Officer and requested the University to initiate disciplinary action as per rules based on the findings and recommendations of the Enquiry Officers.
40. It is clear there from that the Board of Management had requested the university to initiate disciplinary action as per rules. The well settled distinction between ‘initiation of disciplinary action’ and ‘imposition of punishment’ cannot be lost sight of. While the proceedings dated 9-5-2003 empowered the university to initiate disciplinary action, it did not enable it to impose punishment. The Resolution passed by the Board of Management in its 190th meeting held on 30-12-2004 may also be taken note of:
Resolution No. (7420).
Though it was resolved in the last meeting vide its resolution No. 7234 to refer the case to services committee of the Board of Management for its examination, the matter was again discussed thoroughly in the present meeting and it was considered that there is no need to refer the same to the Services Committee as a detailed enquiry was conducted by Sri C. Vittal Rao, S.E. (R & B) appointed by Government.
Perused the entire matter. The inquiry officer’s report reveals that the charges are proved against some staff of Engineering. Taking into consideration the gravity of proven charges the previous
Board has decided to take disciplinary action against them vide Resolution No. 7152 dated 9-5-2003. Basing on the above decision, the then Vice-Chancellor has awarded punishment.
In view of the above circumstances and after thorough discussion it was resolved to ratify the action taken by the then Vice-Chancellor in awarding punishment to the Engineering Staff.
41. The Board had ratified the action taken by the Vice-Chancellor in awarding punishment to the engineering staff. As already noted above since the earlier resolution dated 9-5-2003 merely enabled the Vice-Chancellor to initiate disciplinary action and not to impose punishment, under the said resolution dated 9-5-2003, the Vice-Chancellor was not entitled to impose punishment on the petitioner and his action in this regard was clearly illegal. The Board of Management, therefore, could not have ratified the said illegal act.
42. We cannot however lose sight of the fact that the Board of Management, the competent authority to impose punishment, had in fact, ratified the action of the Vice-Chancellor in imposing the punishment. The legality or otherwise of the action of the Vice-Chancellor apart, since the Board of Management had the power to impose punishment, its resolution dated 30-12-2004, would certainly amount to imposition of punishment of compulsory retirement with 10% cut in pension on the petitioner. It is stated in the affidavit filed in support of W.P.M.P.No. 1519 of 2005 that the said resolution was communicated to the petitioner and as such the punishment as imposed by the Board of Management must be held as having come into force from the date on which the Board of Management passed its resolution on 30-12-2004.
43. In State of Punjab v. Amar Singh the Supreme Court held thus:
… It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him? These and other complications would inevitably arise if it is held that the order of dismissal takes effect as soon as it is passed, though it may be communicated to the officer concerned several days thereafter. It is true that in the present case, the respondent had been suspended during the material period; but that does not change the position that if the officer concerned is not suspended during the period of enquiry, complications of the kind already indicated would definitely arise. We are, therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it will take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. . When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority….
44. The order of punishment of compulsory retirement with 10% cut in pension would come into force only from 30-12-2004, the date of the resolution of the Board of Management. It is well settled that termination of employment, by an order passed by the employer does not become effective till it is passed and is intimated to the employee. (Ray Kumar v. Union of India).
45. Needless to state that since the punishment comes into force only from 30-12-2004, the petitioner, if he is entitled to continue in service till he reached the age of superannuation of 60 years, would be liable to be treated as if he continued in service till 30-12-2004.
46. The impugned order of the 2nd respondent dated 27-6-2003 is quashed. Subject to the aforesaid observations, the writ petition is allowed. However, in the circumstances, without costs.