C.W.P.No.16917 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision:- 14.07.2011
C.W.P.No.11022 of 2010
Dr.Balbir Chand Josan ....Petitioner(s)
vs.
Chandigarh Administration, U.T., Chandigarh and others ....Respondent(s)
C.W.P.No.16917 of 2010
Dr.Balbir Chand Josan ....Petitioner(s)
vs.
Chandigarh Administration, U.T., Chandigarh and others ....Respondent(s)
C.W.P.No.17347 of 2010
The Governing Body, DAV College, Sector 10, Chandigarh ....Petitioner(s)
vs.
Chandigarh Administration and others ....Respondent(s)
***
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.Akshay Bhan, Advocate,
for the petitioner in CWP Nos.16917 & 11022 of 2010
and for respondent No.2 in CWP No.17347 of 2010.
Mr.Rajiv Atma Ram, Sr.Advocate with
Mr.Saurabh Arora, Advocate,
for the petitioner in CWP No.17347 of 2010 and
for respondent No.3 in C.W.P.Nos.16917 of 2010 and
for respondents No.3 and 4 in C.W.P.No.11022 of 2010.
Mr.Amar Vivek, Standing Counsel for
respondent No.1.
Mr.Anupam Gupta, Advocate,
for respondent No.2 in CWP Nos.11022 and 16917 of 2010
and for respondent No.3 in CWP No.17347 of 2010.
C.W.P.No.16917 of 2010 -2-
AUGUSTINE GEORGE MASIH, J.
This order would cover CWP Nos.11022, 16917 and 17347 of
2010.
Facts in these cases are inter-twined and, therefore, are narrated
in a sequence as the events have unfurled leading to the filing of these three
writ petitions out of which the first two writ petitions i.e. CWP Nos.11022
and 16917 of 2010 have been preferred by Dr.Balbir Chand Josan,
Principal, DAV College, Sector 10, Chandigarh and CWP No.17347 of
2010 filed by the Governing Body of the DAV College Sector 10,
Chandigarh (hereinafter referred to as the Governing Body).
Dr.Josan was appointed as the Principal of the DAV College
Sector 10, Chandigarh. Vide letter dated 1.4.2008, the decision was
communicated that the petitioner had been selected as Principal, DAV
College, Sector 10, Chandigarh and was directed to join as such. In
pursuance thereto, the petitioner joined on 2.4.2008. Subsequently,
appointment letter dated 1.7.2008 was issued by the Governing Body. The
petitioner continued to serve as Principal till resolution dated 19.5.2010 was
passed by the Governing Body ordering his transfer. This decision of the
Governing Body was challenged by the petitioner through CWP No.11022
of 2010 on various grounds. On 18.6.2010, this Court while issuing notice
of motion stayed the operation of the impugned resolution dated 19.5.2010.
Replies stand filed by the respondents. The interim order continues to
operate.
During the pendency of the writ petition, the Governing Body
in its meeting held on 14.9.2010 passed a resolution placing the petitioner
under suspension with immediate effect as disciplinary proceedings were
C.W.P.No.16917 of 2010 -3-
contemplated against him. Order dated 15.9.2010 was served upon the
petitioner as per the decision. Dr.Josan moved an application dated
16.9.2010 before the Registrar, Panjab University, Chandigarh requesting
for staying the order of suspension passed by the Governing Body on the
ground that the Governing Body has not sent the suspension order to the
Registrar along with the charge-sheet as required under Regulation 9.2 of
Chapter VIII (E) of the Panjab University Calendar Volume-I (2007) and
that he has not been supplied with the copy of the charge-sheet by the
Governing Body till date and also that he had filed CWP No.11022 of 2010
wherein his transfer had been stayed and the matter is sub-judice before
this Court. Taking these facts into consideration, Registrar, exercising
his powers under Regulation 9.2 stayed the order of suspension passed by
the Governing Body till further orders on 16.9.2010 itself. Thereafter, on
17.9.2010, Registrar, kept the order dated 16.9.2010 in abeyance till further
orders in view of Regulation 4.2 of Chapter III and Section 31 (2) (e) of
the Panjab University Act, 1947 (hereinafter referred to as 1947 Act). This
order is challenged by Dr.Josan by filing CWP No.16917 of 2010
wherein this Court vide order dated 22.9.2010, allowed Dr.Josan to
continue to function as Principal of DAV College, Sector 10,
Chandigarh, but shall not take any policy decision with respect to the
functioning of the College. Dr.Josan made a statement before the Court
that he shall not undertake any financial transaction on behalf of the College
and shall allow the existing financial arrangement to continue. This interim
order continues till date.
Challenge to the order dated 17.9.2010 passed by the Registrar,
Panjab University, Chandigarh is based on the ground that this order is a
C.W.P.No.16917 of 2010 -4-
non-speaking order. The Registrar ceases to have an authority under
Regulation 9.2 once an order is passed under this regulation staying the
order of suspension. There is no power of review with the Registrar.
The order dated 16.9.2010 was passed by the Registrar while exercising his
powers under Regulation 9.2 under Chapter VIII (E) of the Panjab
University Calendar Volume-I (2007) which chapter deals with conditions
of service and conduct of teachers in non-government affiliated colleges
whereas Chapter III is regarding appointment and duties of Registrar and
other Administrative Officers and order dated 17.9.2010 has been passed
under Regulation 4.2 of this Chapter III. These two chapters are distinct,
conferring different powers on the Registrar, where the operation and
sphere of the powers in jurisdiction are separate, therefore, the order is
illegal. There is no mis-statement of facts by Dr.Josan which would
call for exercise of power of review which although is not available under
the statute/Regulations but could justify the passing of order dated
17.9.2010.
When CWP No.16917 of 2010 was taken up for hearing by this
Court on 22.9.2010, counsel for the Chandigarh Administration produced a
photocopy of the letter dated 20.9.2010 addressed by the Registrar
(Education) (C) for Education Secretary, Chandigarh Administration,
informing the General Secretary of the Governing Body DAV College,
Sector 10, Chandigarh that the decision dated 15.9.2010 is invalid in view
of condition/para No.3 of the order dated 26.11.1999 passed by the office of
Education Secretary, Chandigarh Administration as the same had taken
without associating the Director, Higher Education, U.T., Chandigarh
(hereinafter referred to as Director).
C.W.P.No.16917 of 2010 -5-
On receipt of the said letter dated 20.9.2010, CWP No.17347 of
2010 was preferred by the Governing Body challenging it on the ground
that condition/para No.3 of the letter dated 26.11.1999 only talks of inviting
the nominee of the Director and the nominee of the Vice Chancellor, Panjab
University, Chandigarh in every meeting of the Governing Body. In case no
invitation is sent, any decision taken by the Governing Body may not be
considered valid by the Director. It has been pleaded that letter dated
10.9.2010 was sent to the Director requesting him to attend the meeting
which was fixed for 14.9.2010. The said letter was duly received by the
Director and vide communication dated 13.9.2010, the Director showed his
inability to attend the meeting due to pre-scheduled official assignments and
stated that at least two weeks’ notice may be given before scheduling the
meeting of the Managing Committee. The nominee of the Vice Chancellor
was also invited for the meeting and he did attend the meeting on 14.9.2010
whereas the Director chose neither to attend the meeting nor to send his
nominee in the meeting nor any request was made for re-scheduling the
meeting. It is further pleaded that as per the provisions of Chapter VIII (A)
of the Panjab University Calendar Volume-I (2007), there is no requirement
of the statute or law for the nominee of the Vice Chancellor or the
nominees of the Director to be members of the Managing
Committee/Governing Body or for calling them for every meeting. The
presence of the Director or his nominee in each Governing Body meeting is
not mandatory and in any case, the nominees are the members of the
Governing Body like any other member with no extra privilege or authority
and the decisions are taken by the majority.
Upon notice of motion issued in this case, reply has been
C.W.P.No.16917 of 2010 -6-
filed by the Director wherein an objection has been raised with regard
to the maintainability of the writ petition by questioning the locus of the
alleged authorized signatory who had instituted the present writ petition. It
has been stated that one Mrs.Madhu Bahl at the behest of an alleged
authority letter dated 23.9.2010 has filed the writ petition in pursuance
to a resolution passed by the Governing Body. The authority letter has been
issued by the General Secretary of the Governing Body who has been
delegated the powers of the Governing Body, who cannot under law further
delegate his powers and thus, is not competent to issue any authority in
favour of Mrs.Madhu Bahl. Further, as per resolution No.5 passed in the
Governing Body Meeting dated 14.9.2010, the Governing Body has
bestowed all its powers upon its President/Secretary till further orders,
which is not permissible or legal, thereby usurping the authority and
powers of the nominees of the Panjab University as well as the Director. It
has been stated that the notice dated 10.9.2010 did not contain such an
agenda whereby the powers of the Governing Body were to be delegated in
a single individual like the President/General Secretary. The letter dated
20.9.2010 has been sought to be supported on the ground that the
notice dated 10.9.2010 only stated that the meeting was called to discuss the
case regarding Balbir Chand Josan, Principal, DAV College, Sector 10,
Chandigarh. As the meeting was an emergent meeting, the Governing Body
could not discuss the issue of disciplinary action, suspension, issuance of
charge-sheet and vesting of powers of the Governing Body in a single
individual without prior agenda and its due circulation to the answering
respondent and to the Panjab University. The decision of the Governing
Body conveyed vide order dated 15.9.2010 which was taken without
C.W.P.No.16917 of 2010 -7-
associating the Director was invalid in view of the express condition/para
No.3 of the letter dated 26.11.1999. The answering respondent thereafter
advised the petitioner to reconvene a meeting of the Governing Body by
giving 15 days due notice. By this action of the Governing Body, the
Director and the Panjab University stand altogether excluded from the
functioning of the Governing Body till further orders as per the decision.
This is contrary to the spirit of the Punjab Grant-In-Aid Rules, 1979
(hereinafter referred to as Grant-in-Aid Rules) On this basis, dismissal of
writ petition has been sought.
During the course of hearing, Mr.Rajiv Atma Ram, learned
Senior Counsel appearing for the Governing Body, DAV College, Sector
10, Chandigarh, states that CWP No.11022 of 2010 has been rendered
infructuous in view of stay granted by this Court of the resolution of the
Governing Body dated 19.5.2010 whereby Dr.Josan was transferred from
DAV College, Sector 10, Chandigarh and also in the light of the fact that
the Governing Body has passed resolution to suspend him with his
headquarters at Chandigarh which decision when conveyed vide order
dated 15.9.2010 stand challenged in CWP No.16917 of 2010 by Dr.Josan,
rendering the order of transfer redundant. This statement of the counsel for
the Governing Body could not be disputed by Mr.Akshay Bhan, learned
counsel for Dr.Josan. Accordingly, the writ petition is required to be
disposed of as having been rendered infructuous.
For deciding CWP No.16917 of 2010 wherein challenge is
to the order dated 17.9.2010 passed by the Registrar, Panjab
University, Chandigarh keeping his earlier order dated 16.9.2010 in
abeyance till further orders, the provisions under which orders dated
C.W.P.No.16917 of 2010 -8-
16.9.2010 i.e. Regulation 9 and 17.9.2010 i.e. Regulation 4.2 have been
passed by the Registrar, Panjab University need to be looked into,
which read as follows:-
“Chapter VIII (E)
CONDITIONS OF SERVICE AND CONDUCT OF
TEACHERS IN NON-GOVERNMENT
AFFILIATED COLLEGES.
1. to 8 xxxxx xxxxx xxxxx
9.1 Subject to what is contained in Regulation
Nos.10, 11 and 12 the Governing Body of a non-Govt.
College shall be entitled to determine the engagement
of a permanent employee, for a sufficient cause, after
giving him three months’ notice in writing or on
payment of three months’ salary in lieu thereof.
Provided that the Governing Body has the right to
suspend an employee with immediate effect in case of
gross misconduct or moral turpitude. In doing so he
shall be served with a charge-sheet and informed in
writing of the ground on which action is proposed to be
taken.
9.2 A copy of the order of suspension together with a
copy of the charge-sheet shall be sent within a week to
the Registrar who may direct that the teacher shall not be
placed under suspension .
9.3 The period of suspension shall not exceed
three months within which the case must be decided.”
C.W.P.No.16917 of 2010 -9-
“Chapter III
APPOINTMENT AND DUTIES OF REGISTRAR
AND OTHER ADMINISTRATIVE OFFICERS
1 to 4.1 xxxx xxxx xxxx xxxx
4.2 The Registrar shall exercise his powers and
discharge his duties under immediate direction of the
Vice-Chancellor and the Syndicate and the general
control of the Senate.”
A perusal of Regulation 9.1 would indicate that the Governing
Body of a non-government college subject to Regulations 10, 11 and 12 is
entitled to terminate the engagement of a permanent employee for a
sufficient cause. This can be done after giving him three months’
notice in writing or on payment of three months’ salary in lieu thereof.
The Governing Body has further been given the right to suspend an
employee with immediate effect in case an employee commits an act of
gross-misconduct or moral turpitude. When such an action is taken by the
Governing Body, it shall have to serve a charge-sheet on the employee,
informing him in writing the grounds on which action is proposed to be
taken. Regulation 9.2 mandates that a copy of the order of suspension
together with a copy of the charge-sheet shall be sent by the Governing
Body to the Registrar within a week who may direct that the teacher
shall not be placed under suspension. Regulation 9.3 provides the maximum
period of suspension i.e. 3 months’ within which the case must be decided.
A conjoint reading of the above Regulations, so that they blend
harmoniously, when churned, would lead us to a conclusion that the right
of the employer to suspend its employee and that too to its satisfaction
C.W.P.No.16917 of 2010 -10-
stands recognized but with certain qualifications thereto have been
provided. Although the Governing Body has a right to suspend an
employee with immediate effect in case of gross misconduct or moral
turpitude but charge-sheet will have to be served on the employee
informing him in writing the grounds on which the action is proposed to be
taken. The mandate of Regulation 9.1 is not that the charge-sheet has to be
served simultaneously along with the order of suspension as there may be
situations where action cannot brook any delay and require immediate
reaction from the employer. But that does not mean that the management
can, after suspending its employee, take no further steps and sleep over it.
When Regulation 9.1 is read along with Regulation 9.2, the mandate would
be of serving the charge-sheet disclosing therein in writing the grounds on
which the action is proposed to be taken within one week from the date of
passing of the order of suspension by the Governing Body. The period from
the date of passing of order of suspension and the serving of the charge-
sheet cannot exceed one week as the Governing Body under Regulation 9.2
is mandated to send a copy of the suspension order together with a copy of
the charge-sheet to the Registrar within this period. The Registrar under
this Regulation is empowered to direct that the teacher shall not be placed
under suspension. This obviously means that the Registrar would pass such
an order on consideration of the order of suspension and the charge-sheet.
Such an order can also be passed where charge-sheet is not served within
one week of the order of suspension on the employee or where the
Governing Body fails to send a copy of the order of suspension together
with a copy of the charge-sheet to the Registrar within the time stipulated.
This is a safeguard provided under the Regulations to save the employee
C.W.P.No.16917 of 2010 -11-
from harassment and misuse of power of suspension by the Governing Body
to put undue pressure on the employee by keeping him under suspension
without further proceeding in the matter. Although this Regulation does not
specify the charges for which the Registrar would exercise this power but
the Registrar has been given the powers to decide whether the order of
suspension in the given facts and circumstances is justified or not and also
whether a case of gross-misconduct or moral turpitude is made out or not.
However, the Registrar is not restrained from passing such an order when
the order of suspension together with a copy of the charge-sheet is brought
to his notice by the employee concerned which do not fall in these two
categories. If in a case such a situation does not arise i.e. in the absence of
the order of the suspension and/or the charge-sheet, the Registrar cannot
pass an order directing that the teacher shall not be placed under suspension
prior to expiry of one week from the date of passing of the suspension order.
As per Regulation 1 (ii) of Chapter VIII (E) ‘teacher’ includes Principal and,
therefore, it would be applicable to the case in hand. It goes without saying
that while passing final order in exercise of power under Regulation 9.2,
staying the order of suspension, an opportunity of hearing be given to the
management so that the principles of natural justice are duly complied with.
This final order be passed expeditiously and within a reasonable time.
The order dated 16.9.2010 passed by the Registrar, Panjab
University, Chandigarh in the light of the above, is not in accordance with
Regulation 9.2. The order of suspension was passed on 15.9.2010 thus, the
Governing Body had a week’s time to serve a copy of the charge-sheet on
Dr.Josan. The Registrar, thus,could not have taken action on the application
dated 16.9.2010under Regulation 9.2 of Chapter VIII (E) staying the order
C.W.P.No.16917 of 2010 -12-
of suspension passed by the Governing Body. He was required to wait for
the mandatory period of one week for the Governing Body to send the order
of suspension along with the charge-sheet to him. He could have proceeded
to exercise his powers in case the charge-sheet, which had been served on
Dr.Josan on 18.9.2010, had been brought to the notice of the Registrar and
on consideration of the same, if he was satisfied that the allegations against
him in the charge sheet did not disclose commission of an act of gross
misconduct or moral turpitude, order could have been passed by the
Registrar under Regulation 9.2 staying suspension. This could have been
done on 18.9.2010 or thereafter but not before that. It would not be out of
way to mention here that charge sheet was served on Dr.Josan on 18.9.2010
i.e. within one week of his order of suspension dated 15.9.2010.
The contention of the counsel for the petitioner that the
Registrar becomes functus officio once he exercises his powers under
Regulation 9.2 cannot be accepted. Although there is no specific power of
review provided under the Regulations but in the light of the fact that
once the powers have been exercised by the Registrar, he has the power to
recall his order and this power is available to him under Section 21 of the
General Clauses Act, 1897. In any case, the order dated 16.9.2010 was only
an interim order as is apparent from the concluding words “till further
orders” and not a final order as has been sought to be asserted by Dr.Josan.
Probably realizing his mistake, the Registrar, Panjab
University, Chandigarh proceeded to pass an order dated 17.9.2010 but
under Regulation 4.2 Chapter III Section 31 (2) (e) of the 1947 Act,
keeping the earlier order dated 16.9.2010 in abeyance till further orders.
Regulation 4.2, as reproduced above, would show that the Registrar shall
C.W.P.No.16917 of 2010 -13-
exercise his powers or discharge his duties under immediate direction of
the Vice Chancellor and the Syndicate and the general control of the Senate.
The Registrar, Panjab University, Chandigarh has preferred not to file any
reply to the writ petition. There is nothing on the record to suggest that
there was any direction of the Vice Chancellor, the Syndicate or the Senate
in this regard and, therefore, the order dated 17.9.2010 passed by the
Registrar under Regulation 4.2 cannot be said to be in accordance with law.
Although the impugned order dated 17.9.2010 as challenged by
Dr.Josan in this writ petition is not sustainable, however, the order dated
16.9.2010 of the Registrar is also not in accordance with law as has been
held above and, therefore, cannot withstand the scrutiny of the Court.
While deciding a case, the Court is not merely to proceed and decide the
validity of the order under challenge but it has also to see as to whether the
order which would come into operation after setting aside of the subsequent
order is itself sustainable in law or not. By giving sanctity to an illegal
order the Court would be putting a stamp of approval on an illegal order or
act of an authority which would perpetuate injustice and encourage misuse
of power and authority. The power conferred on the High Court under
Article 226 of the Constitution is to advance justice and not to thwart it.
The very purpose of such constitutional powers would be frustrated if an
Act of Court perpetuates injustice by passing an order in a mechanical
manner which would render justice a by-product of error in the name of
deciding a case. Therefore, no relief can be granted to Dr.Josan in this writ
petition.
Mr.Rajiv Atma Ram had raised an objection with regard to
maintainability of this writ petition in the light of Section 7-a of The Punjab
C.W.P.No.16917 of 2010 -14-
Affiliated Colleges (Security of Service of Employees) Act, 1974
(hereinafter referred to as 1974 Act ) and the judgment of the Supreme
Court in T.M.A.Pai Foundation and others vs. State of Karnataka
and others, 2002 (9) SCC 1 on the ground of availability of an alternative
remedy of approaching the Education Tribunal but the same has not
been considered in the light of the fact that the counsel for the parties
stated at the Bar that there was no earlier judgment of this Court on the
Regulations in issue and on this aspect. The provisions required
interpretation to clear doubts which has been attempted and done above.
Now moving on to CWP No.17347 of 2010 filed by the
Governing Body challenging the letter dated 20.9.2010 issued by the
Registrar (Education) (C) for Education Secretary, Chandigarh
Administration informing the Governing Body that its decision dated
15.9.2010 is invalid. Mr.Rajiv Atma Ram submits that the Governing Body
of the College is a multi-member body where Director is having the same
powers as any other member of the Governing Body. He does not dispute
the fact that the Director is a member of the Governing Body but he states
that there is no extraordinary power with the Director to veto the decisions
taken by the Governing Body. There is no provision under the 1947 Act or
the Grant-in-Aid Scheme or the 1974 Act which provides that in case the
Director or his nominee is not present in a meeting, the decision taken
therein would not be valid. Notice of the meeting dated 14.9.2010 was duly
served on the Director vide letter dated 10.9.2010, who only expressed his
inability to attend the meeting due to his pre-occupation. He did not make a
request for deferring/postponement of the meeting. The only ground given
in the letter dated 20.9.2010 (which is under challenge in the writ petition)
C.W.P.No.16917 of 2010 -15-
is that the decision taken in the said meeting held on 14.9.2010 is invalid in
view of condition/para No.3 of the letter dated 26.11.1999. He contends
that as per the provisions of the Panjab University Calendar Volume-I
Chapter VIII (A) which deals with affiliated colleges and the conditions of
affiliation, Regulation 1.2 (a) deals with the Governing Body of a non-
government college wherein neither Director or his nominee nor the Vice
Chancellor or his nominee is mandated to be included in the Governing
Body. However, they have been included in the Governing Body of the
College. Earlier thereto, in the year 2000, as per Regulation 1.2 as
existing then, the nominee of the Vice Chancellor and the Director or his
nominee were sought to be inducted as members of the Governing Body
which was challenged in this Court in Civil Writ Petition No.2367 of 2001
titled as Sanatan Dharam Parcharak Sabha (Regd.) and others vs.
Union of India and others and the challenge was upheld by this Court vide
judgment dated 6.1.2003 and the amendment by inducting the nominees of
the Vice Chancellor and the Director was held to be ultra vires the
regulation making power of the University and violative of the fundamental
rights guaranteed to the College under Article 19 (1)(c) of the Constitution
of India. In any case, he contends that condition No.3 imposed in the letter
dated 26.11.1999 by the Director has been duly complied with as
according to the said condition, the nominee of the Director and the
nominee of the Vice Chancellor are required to be invited to every meeting
of the Governing Body which has been done and which fact has also been
admitted by the respondent in his reply to the writ petition. Letter dated
20.11.2010 is thus, unsustainable.
As regards the objection taken by the Director with regard to
C.W.P.No.16917 of 2010 -16-
the maintainability of the present writ petition through Mrs.Madhu Bahl, he
contends that she had been duly authorized by the Governing Body in its
meeting held on 14.9.2010. Vide the Governing Body Meeting dated
7.1.2011, the minutes of the meeting held on 14.9.2010 stand confirmed
and the decision authorizing Mrs.Madhu Bahl to initiate proceedings in
Court in relation to the matter of suspension of Dr.Josan by the Governing
Body stood rectified as the writ petition was filed on 23.9.2010. Reliance
has been placed on the judgment of the Supreme Court in the case of
Jugraj Singh and another vs. Jaswant Singh and others, AIR 1971 SC
761 as also on Punjab University vs. V.N.Tripathi and another, AIR
2001 SC 3672. He, on this basis prays for setting aside of the impugned
order dated 20.11.2010.
Mr.Amar Vivek, Advocate, appearing for respondent No.1 has
vehemently argued that the decisions taken in the meeting held on
14.9.2010 is illegal as the Director was not associated with the process of
decision making. As per condition 3 of the letter dated 26.11.1999, the
absence of the Director or his nominee in the meeting would result in the
decision taken in the meeting as invalid. He further contends that as per
condition 6 of the said letter, copy of the proceedings of every meeting of
the Governing Body was required to be sent to the Director, which has not
been done by the Governing Body which shows the mala fide on their part
and an effort has been made to overreach the power and authority of the
Director. Relying upon the communication dated 13.9.2010, he contends
that the notice inviting the respondent to the meeting was only served on
him on 13.9.2010 at 3.00 p.m. Thereafter, a request was made for
postponement of the meeting which was neither considered nor accepted
C.W.P.No.16917 of 2010 -17-
and, therefore, the order passed by the Director is in accordance with law.
He contends that the agenda for the meeting dated 14.9.2010 was not
correctly drafted and the Governing Body has exceeded the agenda by
proceeding to decide on the initiation of the departmental proceedings
against Dr.Josan and further by approving the charge-sheet and putting him
under suspension which was not a part of the agenda. Mrs.Madhu Bahl was
also authorized to act on behalf of the Managing Committee/Governing
Body to sign all documents including plaints and to engage advocate(s) in
connection therewith. In this very meeting, the Governing Body delegated
its powers to the President and/or the General Secretary of the Governing
Body which encroaches upon and obliterated the powers of the Director
and that of the nominee of the Vice Chancellor which could not have been
done by the Governing Body as the same was beyond the agenda circulated
for the meeting. He contends that the delegatee cannot further delegate his
powers and Mrs.Madhu Bahl was not authorized to file the present writ
petition and if any authorization was there, it was to the President and/or
General Secretary of the Governing Body. In support of his contention, he
relies upon a Full Bench judgment of this Court in the case of Bhupinder
Singh and others vs. State of Punjab and others, 1985 (3) SLR 643. He,
on this basis, prays for dismissal of the writ petition.
On a candid question put to him by the Court, Mr.Amar Vivek,
has very fairly stated that there are no statutory powers with the Director to
interfere in the management of the private aided non-government colleges
under the 1974 Act or the 1947 Act or under the Grant-in-Aid Scheme for
the private colleges of the State of Punjab which stands adopted by the
Chandigarh Administration.
C.W.P.No.16917 of 2010 -18-
Mr.Anupam Gupta, Advocate, appearing for the Panjab
University has taken me through the various provisions of the 1947 Act
with an intention to highlight the stature and status of the Director in the
scheme of the Act wherein he is a member of the Senate and the Syndicate.
Senate is the supreme authority of which the Director is an ex-officio
member. He has also impressed upon the Court by referring to the role of
the Principal and the importance of the post held by him. His contention
primarily is that the Governing Body cannot, on its whims and fancies,
proceed to take action against the Principal of the College and the Vice
Chancellor of the University with which the college is affiliated as also the
Director, who overlooks the disbursement of grant-in-aid to the colleges,
cannot be mute spectators. Reference has been made by him to various
judgments of the Supreme Court highlighting the jurisdiction of the
University to which the College is affiliated to support his contention that
the University has the power and jurisdiction to interfere in the management
of the college and the affairs of the Governing Body. The judgments of the
Supreme Court referred to are T.M.A.Pai’s case (supra), P.A.Inamdar and
others vs. State of Maharashtra and others, 2005 (6) SCC 537, The
Gandhi Faiz-e-am College, Shahjahanpur vs. University of Agra and
others, AIR 1975 SC 1821, The Ahmedabad St. Xavier College Society
and another vs. State of Gujarat and another, AIR 1974 SC 1389. He,
on this basis, contends that the order passed by the Director, Higher
Education, deserves to be upheld.
Counsel for Dr.Josan has also made his submissions on similar
lines in support of the impugned letter dated 20.9.2010.
Counsel for the Governing Body has responded by submitting
C.W.P.No.16917 of 2010 -19-
that the power of suspension has been provided under Regulation 9 of
Chapter VIII (E) of the University Calendar Volume-I (2007). The Punjab
Affiliated Colleges (Security of Service of Employees) Act, 1974 gives
powers to the Governing Body of the college to place an employee under
suspension as is apparent from Section 2(b) with the heading ‘suspension of
employees’. There is nothing under this provision which would curtail the
powers of the Governing Body to act in this regard. Referring to Section
11 of the 1974 Act, counsel contends that the provisions of this Act have an
over-riding effect over the regulations or Statute of any University. He
contends that the power of suspension having been conferred upon the
Governing Body, it is the satisfaction of the employer which would
determine whether an employee has to be placed under suspension or not.
Reliance has been placed on a Full Bench judgment of this Court in the case
of Guru Nanak University vs. Dr.(Mrs.) Iqbal Kaur Sandhu and
others, AIR 1976 Punjab & Haryana 69. He contends that no objection
was raised by the Director on receipt of the letter inviting him for the
meeting to be held on 14.9.2010 nor had any objection been taken that no
details in the agenda have been given or that the agenda is vague. He
contends that an effort has been made by respondent-Director to support the
impugned letter by supplementing the same by further reasons and grounds
which is impermissible in law. He contends that when an order based on
certain grounds stands passed, its validity is to be judged by the reasons so
mentioned and they cannot be supplemented by fresh reasons in the shape
of affidavits or otherwise. Reliance has been placed on a judgment of the
Supreme Court in the case of Mohinder Singh Gill and another vs.
The Chief Election Commissioner, New Delhi and others, AIR 1978
C.W.P.No.16917 of 2010 -20-
SC 851.
On consideration of the submissions as made by the counsel for
the parties and going through the records of this case, I am of the considered
view that the impugned letter dated 20.9.2010 cannot be sustained.
As per the Panjab University Calendar Volume-I 2007, Chapter
VIII (A) which deals with the affiliated colleges, Regulation 1.2 (a)
thereunder provides for the constitution of the Governing Body of a non-
government college which reads as follows:-
“1.2. (a) The Governing Body of a non-
Government college shall include on its management, in
addition to the Principal who shall be ex-officio member,
two representatives of teachers in case of Governing
Bodies consisting of 15 members and three
representatives of teachers in case of Governing Bodies
consisting of more than 15 members, elected by all
confirmed teachers provided that
(1) two/three teachers so elected shall be of not less
than five years’ standing;
(2) if two/three teachers of five years’ standing are
not available on the staff of the colleges, two/three
teachers who happen to be the senior most on the staff
shall be invited by the Governing Body to serve on it;
and
(3) the term of office of such representatives shall be
the same as for the remaining members of the
Governing Body provided that in no case it shall exceed
C.W.P.No.16917 of 2010 -21-
three years.
Provided further than a casual vacancy shall
be filled by the election within three months of the
vacancy occurring and the members so elected shall
continue for the rest of the term of the outgoing
member.”
A perusal of the above would show that the Director or his
nominee or the nominee of the Vice Chancellor are not mandated to be the
part of the Governing Body. There is no such statutory requirement to have
them on the Governing Body as members.
Counsel for the petitioner has conceded that the Director or his
nominee and the nominee of the Vice Chancellor are members of the
Governing Body but that does not confer any extra privilege/right upon
them. They are members of the Governing Body like any other member. It
is a multi-membered body and the Director or his nominee as also the
nominee of the Vice Chancellor are required to be informed of the
holding of meeting of the Governing Body. It has been stated by the
counsel for the Director that neither under the 1947 Act, nor 1974
Act, or the Grant-in-Aid Scheme, the Director has the power or
jurisdiction to interfere with the working of the Governing Body of the
college. The decisions are taken by the Governing Body as per majority
and the nominee of the Vice Chancellor or the Director or his nominee has
no veto power or power to overrule the decision taken by the Managing
Committee by a majority.
The only reason assigned vide letter dated 20.9.2010 for not
accepting the decision of the Governing Body suspending Dr.Josan
C.W.P.No.16917 of 2010 -22-
is that the condition imposed in para 3 of the letter dated 26.11.1999
vide which approval was granted to the Governing Body stands
violated as the decisions taken in the meeting dated 14.9.2010 were taken
without associating the Director with the process of decision making
i.e. in his absence as he did not attend this meeting. At this stage,
condition No.3 as imposed by the Department of Education while
approving the Governing Body of the College requires reproduction which
reads as follows:-
“3. The nominee of Director Public Instruction
(C) UT, Chandigarh and the nominee of Vice
Chancellor, Punjab University, Chandigarh shall be
invited in every meeting of the Governing Body without
which any decision taken by the Governing Body may
not be considered valid by the Director Public
Instruction (C ) UT, Chandigarh.”
Condition 6 also may be reproduced herein as this is one of the
additional grounds which have been pressed into service by the counsel for
respondent No.1-Director which reads as follows:-
“6. A copy of proceedings of every meeting of
Governing Body shall be sent to the Director Public
Instructions (C) UT, Chd. for his information.”
A perusal of condition No.3 would leave no manner of doubt
that what is mandated therein is that the nominee of the Director and the
nominee of the Vice Chancellor shall be invited in every meeting of the
Governing Body. Upon failure to do so, any decision taken by the
Governing Body may not be considered valid by the Director. Here again, it
C.W.P.No.16917 of 2010 -23-
is to be noted that not all the decisions which are taken by the Governing
Body without inviting the nominees is/are to be invalid but only that/those
which the Director considers to be invalid. Further, Condition No.3 does
not speak that if the nominees are not present in the meeting it would be an
illegal one but what is required is an invitation to the nominees in every
meeting of the Governing Body. In case the nominees fail to attend the
meeting or remain absent that would not give discretion to the Director to
declare a decision invalid merely because he/they did not attend the
meeting of the Governing Body. If the contention of the counsel for the
Director is accepted, the nominees would virtually stall and hijack the
Management of the College leaving the Governing Body at the mercy of
these nominees. If one or both the nominees choose to abstain from the
meeting, no decision would be final and the Director can annul any decision
of the Governing Body. This would be against the principles on the basis of
which the amendment made in the University Calendar in 2000 was
quashed by this Court in CWP No.2367 of 2001 in Sanatan Dharam
Parcharak Sabha (Regd.) case (supra) decided on 6.1.2003, which cannot
be allowed. The exercise of powers by the Director while communicating
letter dated 20.9.2010 is usurping and abrogating to him all such powers
which are not vested in him by law. It can by no stretch of interpretation be
led to conclude that the Director was not associated with the decision taken
by the Governing Body of the College in its meeting held on 14.9.2010
which was conveyed to him vide order dated 15.9.2010 by the
Governing Body. That apart, it is not in dispute that the Director was
invited to the meeting of the Governing Body to be held on 14.9.2010.
This is a naked abuse of power and misuse of Authority by the Director.
C.W.P.No.16917 of 2010 -24-
What had failed through Amendment of Regulation 1.2 in the University
Calendar in the year 2000, the Director has attempted to enforce through his
executive fiat. In absence of any power under any statute which could
invalidate any decision taken by the Governing Body or to interfere with the
management of the college, except by participating in the decision making
process by attending the meetings of the Governing Body, the letter under
challenge leaves no option to this Court but to hold that it is without any
jurisdiction.
The additional grounds which have now been taken to support
the letter dated 20.9.2010 also do not cut much ice. One of the grounds
which has been pressed into service is that the agenda for the meeting dated
14.9.2010 was vague and that postponement of the meeting was requested
by the Director. To test this ground, reference needs to be made to the
letter dated 13.9.2010 written by the Director to the General Secretary of the
Governing Body in response to the invitation to attend the meeting fixed for
14.9.2010. The same reads as follows:-
“Sub: Meeting of Governing Body of DAV
College.
Reference your notice no.17637 dated
10.9.2010 on the subject noted above which has been
received at 3.00 p.m. on 13.9.2010.
Due to pre-scheduled official assignments, I
am not in position to attend the above said meeting. It is
further intimated that at least two weeks notice may be
given before scheduling the meeting of Managing
Committee.
Sd/-
Director Higher Education Deptt. of Education,
Chandigarh Administration.”
C.W.P.No.16917 of 2010 -25-
A perusal of the above would indicate that what was
communicated was that the Director was unable to attend the meeting due
to his pre-scheduled official assignments and a further request was made
that at least two weeks’ notice may be given before scheduling the meeting
of the Managing Committee. No question was asked about the agenda
or its vagueness nor was there any request for postponement of the
meeting. The ground which has now been urged is an afterthought
and without any basis as the same is not forthcoming from the documents
on record.
As regards the contention that the agenda did not spell out the
disciplinary action to be taken against Dr.Josan and further the
authorization to file court cases is concerned, suffice it to say that as per the
letter dated 10.9.2010 which was an invitation to the Director to attend the
meeting on 14.9.2010, it clearly spells out that the meeting was being
convened to discuss the case regarding “Dr.Josan, Principal, DAV College,
Chandigarh”. This obviously meant taking appropriate decision on the said
agenda item as required as per the discussion. A perusal of the minutes of
the meeting dated 14.9.2010 (duly attested photocopy of which has been
produced in Court), would show that the decisions vide Resolutions 1 to 4
taken therein were directly connected with the agenda. Resolution No.1
pertains to placing Dr.Josan under suspension with immediate effect.
Resolution No.2 related to the approval of article of charges and the
decision to serve them upon Dr.Josan. Resolution No.3 was that Dr.Josan
be directed to hand over charge to Sh.Shashi Kumar Gupta, the next senior-
most Professor of the College with immediate effect. Resolution No.4 dealt
with authorization of Mrs. Madhu Bahl to file caveat in this Court on behalf
C.W.P.No.16917 of 2010 -26-
of the Governing Body/Managing Committee on suspension of Dr.Josan.
She was further authorized to assign all documents including plaint(s), suit
(s), replication(s), rejoinder(s), affidavit(s) as well as to engage advocate(s)
in connection therewith. Resolution No.5 was general in nature delegating
the powers to the Governing Body/Managing Committee to the President
and/or General Secretary relating to the various matters dealing with the
employees of the college. It cannot, thus, be said that the decision taken in
the meeting dated 14.9.2010 was not related to or beyond the agenda
circulated for the meeting. In any case, this was not a ground which was
taken for holding the order of suspension of Dr.Josan dated 15.9.2010 as
invalid in the impugned letter dated 20.9.2010 and, therefore, cannot be
taken into consideration.
The ground which has been taken that the minutes of the
meeting dated 14.9.2010 had not been sent to the Director Higher
Education as per condition 6 of the letter dated 26.11.1999, suffice it to
say that letter dated 20.9.2010 which is under challenge in the present case
is not based upon non-supply of the proceedings of the Governing Body
Meeting dated 14.9.2010, nor does it influence or has any bearing on the
decision communicated vide letter dated 20.9.2010. This is also not a
ground mentioned in the said letter for declaring the decision taken in the
meeting dated 14.9.2010 as illegal which was communicated vide order
dated 15.9.2010 by the Governing Body. In any case, as per condition 6,
copy of the proceedings of every meeting of the Governing Body was
required to be sent to the Director only for his information. It would not be
out of way to mention here that after the meeting dated 14.9.2010, the next
meeting of the Governing Body was held on 7.1.2011 which was attended
C.W.P.No.16917 of 2010 -27-
by the Director. A perusal of the minutes of the same would show that the
minutes of the meeting dated 14.9.2010 were duly circulated to all the
members of the Governing Body and various objections raised by the
Director against confirmation of the minutes were duly considered in the
meeting. There was no objection raised by him with regard to the non-
supply of the proceedings of the meeting held on 14.9.2010. This reason as
has been urged now to support letter dated 20.9.2010 is again an
afterthought.
The principles as laid down in the judgment of the Supreme
Court in Mohinder Singh Gill’s case (supra) would be applicable to this
case, according to which when an Authority makes an order based on
certain grounds, its validity must be judged by the reasons so mentioned and
cannot be supplemented by fresh reasons in the shape of affidavit or
otherwise to justify it. Orders passed by public authorities are meant to
have public effect and are intended to affect the acting and conduct of
those to whom they are addressed and must be construed objectively
with reference to the language used in the order itself. Otherwise an order
bad in the beginning may by the time it comes to Court on account of
challenge, may get validated by additional grounds later brought out.
Otherwise also, the additional grounds pressed into service by the
Director as dealt with above have failed to justify the impugned letter
dated 20.9.2010.
The submissions as made by Mr.Anupam Gupta, relying upon
the judgments of the Supreme Court which have been referred to above,
emphasize the eminent position and important role which has been assigned
to the Director in the scheme of the 1947 Act as also of the Principal of a
C.W.P.No.16917 of 2010 -28-
College and thus, importance attached to the said post. There can be no
doubt or dispute on the said aspect. However, an Authority when
exercising its powers cannot act arbitrarily, without any jurisdiction or
authority conferred by/under any statute or law. In the case in hand, the
Acts and the Rules/Regulations, which are applicable, do not confer the
power and authority which has been exercised by the Director, while
communicating the letter dated 20.9.2010. Simply because the scheme of
the Act and Rules/Regulations assign an important role to an Authority,
does not confer any jurisdiction unto him unless so provided under such
Act, Rule or Regulation. If this principle is to be accepted, as has been
contended by Mr.Gupta, it would lead to total chaos and give
unfettered, unbridled and unregulated powers to the Authorities to
proceed in the manner at their whims and fancies, which cannot be
approved.
The only aspect which now needs to be considered and
decided is with regard to the authorization given to Mrs.Madhu Bahl
for filing the present writ petition. Various submissions have been
made as has been referred to above but it should not detain the Court
for long in the light of Resolution No.4 passed by the Governing
Body in its meeting dated 14.9.2010. Reference to the said resolution
would be beneficial to decide this aspect and the same reads as
follows:-
“4. Resolved that a caveat be filed in the
Punjab and Haryana High Court, Chandigarh and that
Mrs.Madhu Bahl, Principal, Kailash Bahl DAV
Centenary Public School, Sector-7-B, Chandigarh, be
C.W.P.No.16917 of 2010 -29-authorized to file a caveat in the Punjab & Haryana High
Court at Chandigarh on behalf of the Governing
Body/Managing Committee, DAV College, Sector-10,
Chandigarh/DAV College Managing Committee, Chitra
Gupta Road, New Delhi on the suspension of Dr.Josan,
Principal DAV College, Sector-10, Chandigarh who has
been placed under suspension by the Governing
Body/Managing Committee, DAV College, Sector-10,
Chandigarh. She be further authorized to sign all
documents including plaint(s), suit(s), replication(s),
rejoinder(s), affidavit(s), as well as to engage
Advocate(s) in connection therewith.”
It is not in dispute that the present writ petition is related
to and in connection with suspension of Dr.Josan and the
authorization as reproduced above would cover the authorization to
file this writ petition as well for the reason that Mrs.Madhu Bahl has
been given Authority to sign all documents including plaint(s), suit(s),
replication(s), rejoinder(s), affidavit(s) as well as to engage advocate(s)
in connection with a matter relating to suspension of Dr.Josan. The
objection as raised by respondent No.1-Director, with regard to the
maintainability of the writ petition is thus, without any basis and is hereby
rejected. In the light of this, there is no necessity to go into the aspect
of ratification of filing writ petition by the Governing Body in its
meeting dated 14.1.2011.
C.W.P.No.16917 of 2010 -30-
In view of above;
(i) CWP No.11022 of 2010 Dr.Balbir Chand Josan vs. Chandigarh
Administration, U.T., Chandigarh and others is disposed of as
infructuous.
(ii) Order dated 17.9.2010 passed by the Registrar, Panjab University,
Chandigarh, which is under challenge in CWP No.16917 of 2010 Dr.Balbir
Chand Josan vs. Chandigarh Administration, U.T., Chandigarh and others
is hereby set aside. However, no relief is granted to the petitioner in this
writ petition on the ground that the earlier order dated 16.9.2010 passed by
the Registrar, Panjab University, Chandigarh is also not in accordance with
law as held above. However, in the light of the fact that now the order of
suspension and the charge sheet have been duly conveyed to the Registrar,
Panjab University and are in his knowledge, it would be open to him to pass
appropriate orders in accordance with law. It shall also be open to Dr.Josan
to move a fresh application to the Registrar, if so advised, to claim relief
under Regulation 9.2.
(iii) C.W.P.No.17347 of 2010 The Governing Body, DAV College,
Sector 10, Chandigarh vs. Chandigarh Administration and others is
allowed. The impugned order dated 20.9.2010 is hereby quashed. Costs of
Rs.20,000/- is imposed on respondent No.1, to be deposited with the
Legal Services Authority, U.T., Chandigarh, within a period of four weeks
from today, failing which the Secretary, Legal Services Authority, U.T.,
Chandigarh, shall initiate process for recovery of the same.
This Court while exercising its powers as conferred by the
Constitution under Article 226 is mandated to do justice and in
furtherance thereto to pass such orders and/or directions as necessary.
C.W.P.No.16917 of 2010 -31-
While adjudicating over a dispute or issue not only a decision has to be
pronounced thereon but efforts should be made to resolve and
conclude the matter at the earliest so that complete justice is done. The
Court must see to it that the matter reaches its logical conclusion
leaving nothing to confusion or uncertainty so that the cause of justice or
justice itself is not a casualty. It is rather unfortunate as to what has
happened in DAV College, Sector 10, an educational institution of high
repute of Chandigarh. No one would dispute that this has not only harmed
its image and reputation but the studies and interest of students have
suffered immensely because of this tussle. The charge sheet was issued to
Dr.Josan on 18.9.2010 and the consequential proceedings are pending
which need to be finalized at the earliest so that the mist of uncertainty is
cleared. This would not only be in the interest of the parties but the
institution also. Accordingly, direction is issued to the concerned parties to
finalize the departmental proceedings initiated against Dr.Josan within a
period of two months from today so that the education and students are not
made to suffer any more because of the friction between the Management,
its employee and others.
July 14th , 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters? Yes/No