* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LETTERS PATENT APPEAL NO. 229/2008 &
C.M.APPL.Nos.6984, 16445/2008, 2846/2009,
3091/2009
Reserved on : 6th April, 2009
Date of Decision: 21st May, 2009
PROFESSOR RAMESH CHANDRA ..... Appellant
Through : Mr.R.Venkataraman,
Sr.Advocate with Mr.Aljo
K.Joseph and Mrs. Neela
Gokhale, Advocates.
versus
THE UNIVERSITY OF DELHI & ORS. ..... Respondents
Through : Mr. V.P.Singh, Sr.Advocate with
Mr.Mohinder Jit Singh Rupal
and Mr.Amar Jyoti Srivastava,
Advocates for R-1 & R-2.
Ms.Maneesha with Mr.Amit
Bansal, Advocates for R-3.
% CORAM:
HON'BLE MR. JUSTICE MADAN B.LOKUR
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether reporters of local papers may be allowed to
see the judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in the
Digest? Yes.
JUDGMENT
SIDDHARTH MRIDUL, J.
1. The present Letters Patent Appeal has been preferred by
the Appellant feeling aggrieved and dissatisfied by the judgment
and order dated 11th April, 2008 passed by the learned Single
[LETTERS PATENT APPEAL NO. 229/2008] [Page 1 of 26]
Bench in Writ Petition No.16000/2006 whereby the writ petition
filed by the Petitioner/Appellant herein was dismissed on the
ground that the various communications, grievances and pleas
taken by the Petitioner could well be adjudicated before the
Inquiry Officer.
2. The factual matrix as found by the learned Single Bench
was as follows:
a. The University of Delhi, under the auspices of
the Ministry of Welfare, Government of India,
decided to set up Dr.B.R.Ambedkar Biomedical
Research Centre (ACBR).
b. The Appellant, who holds the substantive post of
Professor in the Department of Chemistry,
University of Delhi, was made the Acting
Director of ACBR by way of an additional charge
which was communicated to him by the
Assistant Registrar (E-NT) of the University vide
letter dated 30th May, 1995.
c. The Appellant discharged both his substantive
as well as additional duties till 20th September,
1999 on which date he left on deputation to join
his new posting as Vice-chancellor of
Bundelkhand University, Jhansi, Uttar Pradesh.
d. In pursuance thereof, the Registrar, University
of Delhi on 20th September, 1999, notified the
[LETTERS PATENT APPEAL NO. 229/2008] [Page 2 of 26]
appointment of Professor Vani Brahmachari asActing Director of ACBR during the leave period
of the Appellant. It was, however, resolved that
the Appellant would continue to provide
academic leadership to ACBR.
e. Although the deputation period of the Appellant
was scheduled to expire on 31st July, 2005, he
was removed from the post of Vice-Chancellor,
Bundelkhand University, Jhansi on
16th July, 2005.
f. The Appellant on 18th July, 2005, resumed the
duties as professor, Department of Chemistry,
University of Delhi. The Deputy Registrar of
ACBR, on the same date, issued a notification to
the effect that the Appellant had fully resumed
his charge as Director of ACBR.
g. Although the University of Delhi allowed the
Appellant to resume his substantive duties as
Professor in the Department of Chemistry, he
was not allowed to join his duties as Acting
Director, ACBR.
h. The Executive Council of the University of Delhi,
on 17th October, 2005, passed the following
three resolutions against the Petitioner:
[LETTERS PATENT APPEAL NO. 229/2008] [Page 3 of 26]
1. Professor Ramesh Chandra be not
allowed to hold any administrative
position in Delhi University
henceforth.
2. A show cause notice be issued to
Professor Ramesh Chandra for –
(a) suppressing information with
regard to allegations on account of
which he was removed from the
post of Vice-chancellor of
Bundelkhand University at the
time of his premature return to
Delhi University, and
(b) unauthorisedly assuming the
office of the Director,
Dr.B.R.Ambedkar Centre for
Biomedical Research, Delhi
University for the period from 18th
July, 2005 to 24th July, 2005 in
contravention of the statutory
provisions of the University; and
3. The decision, if any, taken by at
the instance of Professor Ramesh
Chandra, while unauthorisedly
occupying the post of the Director,
Dr.B.R.Ambedkar Centre for
Biomedical Research, or
[LETTERS PATENT APPEAL NO. 229/2008] [Page 4 of 26]
thereafter, be treated as null andvoid.
3. Aggrieved by the decision of the Executive Council dated
17th October, 2005, the Appellant filed a writ petition
No.16000/2006 seeking the following relief:
(a) Issue a writ of Certiorari or any other
writ or direction in the nature of
Certiorari quashing the resolutions
dated 17th October, 2005 passed by the
Executive Council, University of Delhi.
(b) Issue a writ of Certiorari or any other writ or direction in the nature ofCertiorari quashing all the acts of the
University done in pursuance of the
resolutions dated 17th October, 2005.
(c) Issue a writ of mandamus or any other
writ, order or direction directing the
Respondent-University to continue to
implement its own order dated
30th May, 1995 allowing the Appellant to
continue to function as Director.
4. Vide the impugned order the learned Single Judge found
that the Appellant was not a regular appointee to the post of
Acting Director of ACBR as could be inferred from the letter
dated 30th May, 1995 which categorically stipulated that the
[LETTERS PATENT APPEAL NO. 229/2008] [Page 5 of 26]
Appellant would continue to be Acting Director of ACBR, till thetime a regular appointment was made. It was further found that
it was explicit from the letter dated 30th May, 1995 that the
Appellant‟s appointment to the post of Acting Director, ACBR
was made by the Vice-chancellor of the University of Delhi.
5. The learned Single Judge also found that the Appellant in
pursuance of his deputation as Vice-chancellor, Bundelkhand
University, Jhansi, was replaced by Professor Vani Brahmachari
by the University of Delhi vide notification dated 20th
September, 1999. The learned Single Judge held that the
notification dated 20th September, 1999 clearly stipulates that
the Appellant had been replaced by Professor Vani Brahmachari
and that he was to continue providing academic leadership to
ACBR pursuant to his appointment as Vice Chancellor,
Bundelkhand Univeristy, Jhansi. The learned Single Judge
moreover found that the Appellant had not brought on record a
single document notified by the University of Delhi to the effect
that Professor Vani Brahmachari was to continue Acting as
Director of ACBR only until the expiry of the deputation period
of the Appellant. The learned Single Judge further found that
the catena of resolutions, purportedly, passed by the governing
body of ACBR stipulating that the Appellant would continue
holding the post of Acting Director ACBR whilst simultaneously
holding the post of Vice Chancellor, Bundelkhand University,
Jhansi, prima facie appeared to be of doubtful veracity inasmuch
[LETTERS PATENT APPEAL NO. 229/2008] [Page 6 of 26]
as their existence had been out-rightly denied by theRespondents.
6. The learned Single Judge also noted that pursuant to the
Appellant‟s repatriation from Bundelkhand University, Jhansi, a
notification dated 18th July, 2005, was issued by the Deputy
Registrar of ACBR to the effect that the Appellant had fully
resumed charge as Acting Director of ACBR, which resolution
was consequently withdrawn on 25th July, 2005, pursuant to the
letter dated 19th July, 2005 addressed by the Registrar,
University of Delhi to the Deputy Registrar ACBR. It was the
finding of the learned Single Judge that prima facie the following
consequences were deducible from the withdrawal of the
notification dated 18th July, 2005:
(a) Firstly, and perhaps, most importantly, any
appointment to the post of Director, ACBR and
even termination thereof, was to be made only on
the behest of the University of Delhi and not the
Governing Body of the ACBR;
(b) Secondly, the decision of the Registrar,
University of Delhi to revoke the notification dated
18th July, 2005 clarified that the University of
Delhi, vide letter dated 20th September, 1999 had
not in fact contemplated the Appellant to continue
holding the charge of Acting Director of ACBR
during his tenure as Vice Chancellor of
Bundelkhand University, Jhansi;
[LETTERS PATENT APPEAL NO. 229/2008] [Page 7 of 26]
(c) Thirdly, the resolutions issued by the
Governing Body stipulating that the Petitioner was
to continue as Director of ACBR, if any, were
dehors the notification dated 25 th July, 2005,
whereby the Governing Body revoked its earlier
notification dated 18th July, 2005, since the
Governing Body obviously could not have issued
the said resolutions once having revoked its
notification dated 18th July, 2005.
(d) Fourthly, the Appellant became aware of the
Respondents‟ decision of not allowing him to
continue as Acting Director way back on 25th July,
2005 but he did not bring on record a single
document to explain why he did not confront the
University at that time.
7. The learned Single Judge further held that the submissions
of the petitioner imputing mala fides to the Respondents, prima
facie, held no water. The learned Single Judge observed that it is
trite philosophy that mala fides are easy to allege but difficult to
prove and that the Appellant had not brought on record a Single
document which would, prima facie, give reason for the Court to
believe that the resolutions dated 17th October, 2005 were
upshot of the mala fide intention on the part of the Respondents.
8. The learned Single Judge finally observed that it was well
settled by a catena of the decisions of the Apex Court that
ordinarily no writ could be entertained against a charge-sheet or
[LETTERS PATENT APPEAL NO. 229/2008] [Page 8 of 26]
show cause notice since a mere charge-sheet or show causenotice does not give rise to any cause of action, because it does
not amount to an adverse order which affects the rights of any
party, unless the same is issued by a person having no
jurisdiction to do so. The learned Single Judge, therefore, found
no grounds to interfere with the writ petition filed by the
Appellant and the same was accordingly dismissed.
9. Mr. R.Venkatramani, learned Senior Advocate appearing on
behalf of the Appellant assailed the order of the learned Single
Judge on the ground that the impugned decision failed to
appreciate that the charges leveled against the Appellant did not
constitute a misconduct. The learned Senior Counsel
consequently urged that the actions of the Appellant were based
on the General Body Resolutions of the ACBR and were thus free
from blame.
10. It was next argued that since the General Body Resolutions
had not been set aside by the Executive Council of the Delhi
University, they could not be disregarded.
11. Lastly, it was argued that the decision of the Allahabad
High Court in favour of the Appellant had not been considered.
12. Per contra, it was argued by Mr. V.P.Singh, learned Senior
Advocate, appearing on behalf of the Delhi University that the
power to appoint a Director to ACBR was vested in the
Executive Council of the Delhi University under Ordinance XX
Clause 6, Sub-clause 4 of the Delhi University Act and that the
[LETTERS PATENT APPEAL NO. 229/2008] [Page 9 of 26]
Appellant had been appointed as Acting Director by the ViceChancellor of the Delhi University.
13. It was next urged on behalf of the Respondents that the
Appellant had no lien, as the post of Director, ACBR, was only an
Acting assignment. It was also urged that when the Appellant
had proceeded to Bundelkhand University as Vice Chancellor,
Professor Vani Brahmachari had been appointed as Acting
Director vide communication dated 20th September, 1999 and
later on Daman Saluja had been appointed as Acting Director
with effect from 2nd January, 2006 to replace Vani Brahmachari,
and that the Appellant had not challenged the said appointments
made in his stead.
14. Further, it was submitted on behalf of the Respondents
that no jurisdictional error had been demonstrated while seeking
quashing of the resolution dated 17th October, 2005.
15. It was lastly urged on behalf of the Respondent-University
that the Appellant had been served with a memorandum for
suppressing the reasons for his premature removal as Vice
Chancellor, Bundelkhand University, Jhansi and that the said
action amounted to misconduct punishable under Ordinance XI,
Clause VI of the Delhi University Act.
16. Before adverting to the rival submissions made on behalf of
the parties it is necessary to extract the letters dated 30th May,
1995 and 20th September, 1999 whereby the Appellant had been
appointed as Acting Director of ACBR, and had been replaced by
[LETTERS PATENT APPEAL NO. 229/2008] [Page 10 of 26]
Professor Vani Brahmachari on his proceeding on deputation asVice Chancellor, Bundelkhand University respectively.
“No.Estab.
III/BRAC/95/1936
Delhi, the 30th May, 1995.Dr.Ramesh Chandra,
Research Scientist (Professor),
Department of Chemistry,
University of Delhi,
Delhi – 110 007Dear Sir,
I am directed to inform you that the Vice Chancellor has
been pleased to decide that you will act as the Director of
Dr.B.R.Ambedkar Centre for Bio-medical Research, University of
Delhi with immediate effect till regular appointment of a
Director is made by the University.Yours faithfully,
Assistant Registrar
(E-NT)Copy for information to:
1. The Dean, Faculty of Science, University of Delhi, Delhi.
2. The Chairman, Board of Research Studies, Faculty of
Science, University of Delhi, Delhi-7.3. The Head of the Department of Chemistry, University of
Delhi, Delhi.4. The Assistant Registrar, A/CS-I), University of Delhi, Delhi.
Assistant Registrar (E-NT)
******
“No.Estab.(T)/V/99/ACCR/35652
[LETTERS PATENT APPEAL NO. 229/2008] [Page 11 of 26]
Delhi,the 20th September, 1995.NOTIFICATION
The Vice-Chancellor has been pleased to appoint
Prof.Vani Brahmachari as officiating Director (Hony.) of the
Dr.B.R.Ambedkar Centre for Bio-Medical Research during leave
period of Prof.Ramesh Chandra, who has joined as Vice-
Chancellor of Bundelkhand University, Jhansi. He will however
continue to provide academic Leadership.(K.K.PANDA)
REGISTRARProf.Vani Brahmachari,
Dr.B.R.Ambedkar Centre for
Biomedical Research,
University of Delhi,
DELHI – 110 007.Copy to:
1. The Director, University of Delhi, Delhi – 7.
2. The Finance Officer, University of Delhi, Delhi -7.
3. The Joint Finance Officer, University of Delhi, Delhi -7.
4. The Joint Registrar, University of Delhi, Delhi -7.
5. The Director, B.R.Ambedkar Centre for Biomedical
Research, University of Delhi, Delhi – 7.17. Before proceeding further it would be appropriate to
consider the referred portions of the judicial pronouncements
relied upon by the parties in support of their respective
contentions.
18. Learned counsel for the Appellant relied on the
following judgments:
1. In A.L.Kalra vs. Project and Equipment
Corporation of India Ltd (1984) 3 SCC 316 the
Supreme Court observed that:-
“What in a given context would constitute
conduct unbecoming of a public servant to
be treated as misconduct would expose a
grey area not amenable to objective[LETTERS PATENT APPEAL NO. 229/2008] [Page 12 of 26]
evaluation. Where misconduct when proved
entails penal consequences, it is obligatory
on the employer to specify and if necessary
define it with precision and accuracy so that
any ex post facto interpretation of some
incident may not be camouflaged as
misconduct.”2. In UOI vs. J.Ahmed (1979) 2 SCC 286, the
Supreme Court observed as follows:-
“In industrial jurisprudence amongst
others, habitual or gross negligence
constitute misconduct but in Utkal
Machinery Ltd. v. Workmen, Miss
Shanti Patnaik, (1966) 2 SCR 434, in
the absence of standing orders
governing the employee’s undertaking,
unsatisfactory work was treated
as misconduct in the context of
discharge being assailed as punitive. In
S. Govinda Menon v. Union of India,
(1967) 2 SCR 566, the manner in
which a member of the service
discharged his quasi judicial function
disclosing abuse of power was treated
as constituting misconduct for initiating
disciplinary proceedings. A single act of
omission or error of judgment would
ordinarily not constitute misconduct
though if such error or omission results
in serious or atrocious consequences
the same may amount to misconduct as
was held by this Court in P.H. Kalyani
v. Air France, Calcutta, (1964) 2 SCR
104, wherein it was found that the two
mistakes committed by the employee
while checking the load-sheets and
balance charts would involve possible
accident to the aircraft and possible
loss of human life and, therefore, the
negligence in work in the context of
serious consequences was treated as
misconduct. It is, however, difficult to
believe that lack of efficiency or
attainment of highest standards in
discharge of duty attached to public
office would ipso facto constitute
misconduct. There may be negligence
in performance of duty and a lapse in
performance of duty or error of
judgment in evaluating the developing[LETTERS PATENT APPEAL NO. 229/2008] [Page 13 of 26]
situation may be negligence in
discharge of duty but would not
constitute misconduct unless the
consequences directly attributable to
negligence would be such as to be
irreparable or the resultant damage
would be so heavy that the degree of
culpability would be very high. An error
can be indicative of negligence and the
degree of culpability may indicate the
grossness of the negligence.
Carelessness can often be productive of
more harm than deliberate wickedness
or malevolence. Leaving aside the
classic example of the sentry who
sleeps at his post and allows the enemy
to slip through, there are other more
familiar instances of which a railway
cabinman signals in a train on the same
track where there is a stationary train
causing head-on collision; a nurse
giving intravenous injection which
ought to be given intramuscular
causing instantaneous death; a pilot
overlooking an instrument showing
snag in engine and the aircraft crashes
causing heavy loss of life. Misplaced
sympathy can be a great evil [see
Navinchandra Shakerchand Shah v.Manager, Ahmedabad Co-op. Department Stores Ltd. (1978)19 G.L.R. 108 at 120]. But in any case,
failure to attain the highest standard of
efficiency in performance of duty
permitting an inference of negligence
would not constitute misconduct nor for
the purpose of Rule 3 of the Conduct
Rules as would indicate lack of devotion
to duty.”3. In Pankaj Bhargav vs. Mohinder Nath (1991)
1 SCC 556, the Supreme Court stated that:-
“Suffice it to say that in a collateral
challenge the exercise is not the
invalidation of a decision, but only to
ascertain whether the decision
„exists‟ in law at all and to rely upon
incidents and effect of its „non-existence‟. The authority of decided
cases is to the effect that the
permission granted must be[LETTERS PATENT APPEAL NO. 229/2008] [Page 14 of 26]
presumed to be valid till set aside.
Doctrine of collateral challenge will
not apply to a decision which is valid
ex-hypothesi and which has some
presumptive existence, validity and
effect in law. Such a decision can be
invalidated by the right person in
right proceedings brought at the
right time. It is only a nullity
stemming from lack of inherent
jurisdiction or a proceeding that
wears the brand of invalidity on its
forehead that might afford a defence
even against enforcement.”4. In Gokaraju Rangaraju vs. State of Andhra
Pradesh AIR (1981) S.C. 1473, the Supreme Court
referred to:-
Black on judgments where it is said:
“A person may be entitled to his
designation although he is not a
true and rightful incumbent of the
office, yet he is no mere usurper but
holds it under colour of lawful
authority. And there can be no
question that judgments rendered
and other acts performed by such a
person who is ineligible to a
judgeship but who has nevertheless
been duly appointed, and who
exercises the power and duties of
the office is a de facto judge, and his
acts are valid until he is properly
removed.”5. In 69 L.Ed.1011, United States vs. Elmo
R.Royer it was observed:
“To constitute an office de-facto it
was not a necessary pre-requisite
that there should have been an
attempted exercise of competent or
prima facie power of appointment or
election.”[LETTERS PATENT APPEAL NO. 229/2008] [Page 15 of 26]
6. In State of Punjab vs. V.K.Khanna & Ors.
AIR (2001) SCC 343, the Supreme Court said:-
“…33. While it is true that
justifiability of the charges at this
stage of initiating a disciplinary
proceeding cannot possibly be delved
into by any Court pending inquiry but
it is equally well settled that in the
event there is an element of malice or
malafide, motive involved in the
matter of issue of a charge-sheet or
the concerned authority is so biased
that the inquiry would be a mere
farcical show and the conclusions are
well known then and in that event law
Courts are otherwise justified in
interfering at the earliest stage so as
to avoid the harassment and
humiliation of a public official. It is
not a question of shielding any
misdeed that the Court would be
anxious, it is the due process of law
which should permeate in the society
and in the event of there being any
affectation of such process of law that
law Courts ought to rise up to the
occasion and the High Court in the
contextual facts has delved into the
issue on that score. On the basis of
the findings no exception can be taken
and that has been the precise reason
as to why this Court dealt with the
issue in so great a detail so as to
examine the judicial propriety at this
stage of the proceedings.34. The High Court while delving
into the issue went into the factum of
announcement of the Chief Minister in
regard to appointment of an Inquiry
Officer to substantiate the frame of
mind of the authorities and thus
depicting bias – What bias means has
already been dealt with by us earlier
in this judgment, as such it does not
require any further dilation but the
factum of announcement has been
taken note of as an illustration to a
mindset viz.: the inquiry shall proceed
irrespective of the reply – Is it an
indication of a free and fair attitude[LETTERS PATENT APPEAL NO. 229/2008] [Page 16 of 26]
towards the concerned officer? The
answer cannot possibly be in the
affirmative. It is well settled in Service
Jurisprudence that the concerned
authority has to apply its mind upon
receipt of reply to the charge-sheet or
show-cause as the case may be as to
whether a further inquiry is called for.
In the event upon deliberations and
due considerations it is in the
affirmative – the inquiry follows but
not otherwise it is this part of Service
Jurisprudence on which reliance was
placed by Mr.Subramaniam and on
that score, strongly criticized the
conduct of the respondents here and
accused them of being biased. We do
find some justification in such a
criticism upon consideration of the
materials on record.”7. In Delhi Development Authority vs.
H.C.Khurana, 1993 (2) SLR, 509 the Supreme
Court stated:-
“the question now, is: what is the
stage, when it can be said, that „a
decision has been taken to initiate
disciplinary proceedings‟? We have
no doubt that the decision to initiate
disciplinary proceedings cannot be
subsequent to the issuance of a
charge-sheet, since issue of the
charge-sheet is a consequence of the
decision to initiate disciplinary
proceedings. Framing the charge-sheet, is the first step taken for
holding the inquiry into the
allegations, on the decision taken to
initiate disciplinary proceedings. The
charge-sheet is framed on the basis
of the allegations made against the
Government Servant; the charge-
sheet is then served to him to enable
him to give his explanation; if the
explanation is satisfactory, the
proceedings are closed, otherwise,
the enquiry is held into the charges;if the charges are not proved, the
proceedings are closed and the[LETTERS PATENT APPEAL NO. 229/2008] [Page 17 of 26]
Government Servant exonerated; but
if the charges are proved, the penalty
follows.19. Mr.V.P.Singh, Sr.Advocate, relied on the following
decisions:
1. In M.V. Janardhan Reddy vs. Vijaya Bank and
Ors. (2008) 7 SCC 738, where the Supreme
Court observed that :-
“It is true that the Recovery Officer
confirmed the sale in favour of the
appellant. But as we have already
noted, in view of the condition
imposed by the Company Court, the
Recovery Officer did not have the
power to confirm sale. An order
passed by an officer having no
authority of law has no effect. It
neither creates any right in favour of
a party for whom such order is made
nor imposes any obligation on the
opposite party against whom it was
passed.”2. In S.S. & Company vs. Orissa Mining
Corporation Ltd. (2008) 5 SCC 772, the
Supreme Court stated that :-
“33. We are in complete
agreement with the view taken by the
High Court. As a matter of fact, for
rejecting the allegation that the
impugned amendment was
introduced in Clause 8(i) of the NIT
at the instance of the Managing
Director, without obtaining prior
approval of the Board of Directors we
need not even go to the rebuttal-affidavit filed by the Addl. General
Manager. The Board of Directors is
the apex policy-making body. It may
lay down broad guidelines but it is
impossible to conceive that all the
NITs (over a hundred in number)
issued by the Corporation for[LETTERS PATENT APPEAL NO. 229/2008] [Page 18 of 26]
different purposes every year should
come before it for consideration and
approval of their respective clauses
or any amendment proposed in any
clause in any of the NITs. (We fail to
see any good reason why the matter
should not be finalized by the
Managing Director or, depending
upon the nature of the contract, even
at some lower level).34. The normal work of any organization or government department would be seriouslyhampered if every tendering party
would claim the right to raise
objection that one or the other clause
in a NIT or any amendment
introduced in any of its clauses did not
have the prior sanction of the highest
policy-making body of the
organization. In this case particularly
there is no occasion to go into that
question as there is neither any
material to suggest, even remotely,
that the Managing Director harboured
any malice against the appellant nor is
the Managing Director made a party
to this case in his personal capacity.”3. In Triveni Shankar Saxena vs. State of U.P.
and others; (1992) Supp (1) SCC 524 the
Supreme Court stated that :-
“17. We shall now examine what the
word ‘lien’ means. The word ‘lien’
originally means “binding” from the
Latin ligamen. Its lexical meaning is
“right to retain”. The word ‘lien’ is
now variously described and used
under different context such as
‘contractual lien’, ‘equitable lien’,
‘specific lien’, ‘general lien’, ‘partners
lien’, etc. In Halsbury’s Laws of
England, (Fourth Edition, Volume 28
at page 221, para 502) it is stated :“In its primary or legal
sense “lien” means a right
at common law in one man
to retain that which is[LETTERS PATENT APPEAL NO. 229/2008] [Page 19 of 26]
rightfully and continuously
in his possession belonging
to another until the present
and accrued claims are
satisfied.”18. In Stroud’s Judicial Dictionary,
(5th Edition, Volume 3 at page 1465)
the following passage is found :“Lien. (1) A lien-(without
effecting a transference of
the property in a thing)-is
the right to retain
possession of a thing until a
claim be satisfied; and it is
either particular or general.So, as regards Scotland,
“lien” is defined as
including „the right of
retention‟ [Sale of Goods
Act 1893 (c. 71), S. 62], or it
“shall mean and include
right of retention” [Factors
(Scotland) Act, 1890 (c. 40),
S.1]; Great Eastern Railway
Co. v. Lord‟s Trustees
(1909) A.C. 109.19. In words and Phrases, Permanent
Edition, Vol. 25 the definition of word
‘lien’ when used to explain the
equitable lien, is given thus :“A ‘lien’ from a legal
standpoint, embodies the
idea of a deed or bond, and
necessarily implies that
there is something in
existence to which it
attaches.”
24. A learned Single Judge of the
Allahabad High Court in M.P. Tewari
v. Union of India 1974, All LJ 427
following the dictum laid down in the
above Paresh Chandra case (1970) 3
SCC 870 and distinguishing the
decision of this Court in P.L. Dhingra
v. Union of India AIR 1958 SC 36, has
observed that “a person can be said to
acquire a lien on a post only when he
has been confirmed and made[LETTERS PATENT APPEAL NO. 229/2008] [Page 20 of 26]
permanent on that post and not
earlier”, with which view we are in
agreement.”
20. In the present case, it is seen that the ACBR was set up by
the University of Delhi. Under the provisions of sub-clause 4 of
Clause 6 of Ordinance XX of the Delhi University Act, 1922 the
appointment of the Director of ACBR could only be made by the
Executive Council. The appointment of the Appellant as Acting
Director was made by the Vice-Chancellor vide communication
dated the 30th May, 1995. Thereafter, when the appellant
proceeded on deputation as Vice-Chancellor, Bundelkhand
University, Jhansi, the Vice-chancellor vide communication dated
20th September, 1999 was pleased to appoint Prof. Vani
Brahmachari as officiating Director of ACBR in place of the
Appellant.
21. The Appellant has not questioned the authority or
competence of the Vice-Chancellor to do so at any stage.
Therefore, it does not lie in his mouth now to urge that the
Governing Body of ACBR had the power or authority to appoint
or continue him as the Acting Director of the ACBR. Even
otherwise it is seen that vide notification dated 25 th July, 2005,
the earlier notification dated 18th July, 2005, permitting the
Appellant to join back as full time Director, was withdrawn by
the ACBR itself, on a communication in this behalf by the Delhi
University. Therefore, the issue whether or not the Appellant
could continue holding charge as Acting Director of ACBR was to
be decided by the Executive Council or Vice-Chancellor of the
[LETTERS PATENT APPEAL NO. 229/2008] [Page 21 of 26]
University of Delhi and not the Governing Body of the ACBR. It
is equally clear that the Governing Body of the ACBR could not
continue the Appellant as Acting Director of ACBR contrary to
the decision in this behalf of the Delhi University.
22. The above cited Ordinance XX makes it evidently clear that
the Governing Body of the ACBR was to function and manage its
affairs under the control and supervision of the Executive
Council of the University of Delhi and not in opposition to it.
23. In this view of the matter, we agree with the conclusions
deduced by the learned Single Judge from the withdrawal of the
notification dated 18th July, 2005, to the effect that (i) firstly, and
perhaps most importantly, any appointment to the post of
Director, ACBR, and even termination thereof, was to be done at
the instance of the University of Delhi and not the Governing
Body of ACBR; (ii) secondly, the decision of the Registrar,
University of Delhi to revoke the notification dated 18 th July,
2005 clarified that the University of Delhi, vide letter dated
20th September, 1999, had never contemplated the appellant to
continue holding the charge of Acting Director of ACBR during
his tenure as Vice-Chancellor of Bundelkhand University, Jhansi;
(iii) thirdly, the resolutions issued by the Governing Body, ACBR,
stipulating that the appellant was to continue as Director of
ACBR, if any, were de hors the notification dated 25 th July, 2005
whereby the Governing Body revoked its earlier notification
dated 18th July, 2005. The Governing Body once having revoked
its notification dated 18th July, 2005, obviously could not have
[LETTERS PATENT APPEAL NO. 229/2008] [Page 22 of 26]
issued the said Resolutions; and (iv) fourthly, the appellant was
aware of the Respondents‟ decision of not allowing him to
continue as Acting Director, ACBR as far back as on
25th July, 2005, but he never confronted the University of Delhi
in this respect at that time.
24. The submissions made by the appellant to the effect that
there can be no collateral challenge to Governing Body
Resolutions or that the Governing Body or the Appellant had
de facto authority to enable the Appellant to continue to function
as Director, ACBR, hold no water. The rulings relied upon by
the appellant in the context of the facts and circumstances of
those particular cases, cannot be engrafted on the present case
in a blanket manner. It is also to be emphasized that it is well
established that if a statute empowers a specific body to exercise
power, it must be exercised by that body alone and no other
body can usurp or exercise that power without the authority of
law.
25. The appellant has next contended that the decision of the
Allahabad High Court has not been considered in the impugned
judgment. In this behalf it is observed that it is not the case of
the Respondents that the conduct of the Appellant needs to be
enquired into for the purported charges based on which the
latter was prematurely removed as Vice-chancellor,
Bundelkhand University, Jhansi. The show cause notice issued
to the Appellant by the Respondent herein is with respect to the
concealment by the Appellant of the factum of his being removed
[LETTERS PATENT APPEAL NO. 229/2008] [Page 23 of 26]
from the post of Vice-chancellor at the time of seeking to rejoin
the University of Delhi as Professor in the Department of
Chemistry. In this behalf it is relevant to consider the
communication dated 18th July, 2005 whereby the Appellant
sought to rejoin his duties with the University of Delhi. In the
said communication the Appellant wrote that “After completing
my tenure as the Vice-chancellor, Bundelkhand University,
Jhansi, for almost six years, I have returned back and hereby
report my duties as the Professor, Department of Chemistry,
University of Delhi today i.e. 18th July, 2005 (Forenoon).” What
the Respondent seeks to inquire into is the conduct of the
Appellant whereby the latter sought to rejoin his substantive
post as Professor in the Department of Chemistry, by conveying
a misleading impression that the latter was joining back after
completing his tenure as Vice-chancellor, Bundelkhand
University, Jhansi, whilst suppressing the factum of his removal
from the post on charges of abuse of power before completion of
his tenure. The decision of the Allahabad High Court absolved
him of the charges on which the Appellant had been removed
from Bundelkhand University, Jhansi. By any stretch of the
expression, the said decision cannot and did not absolve the
Appellant from the factum of not having disclosed to the
Respondents at the time of rejoining that the Appellant had been
removed from the post of Vice-chancellor prematurely and
thereafter rejoined his substantive post as Professor in the
Department of Chemistry. Prima facie the concealment by the
Appellant of the factum of his removal at the time of rejoining
[LETTERS PATENT APPEAL NO. 229/2008] [Page 24 of 26]
the Respondent is the issue in the show cause notice and not the
decision of the Allahabad High Court which is on an entirely
different footing. Therefore, the decision of the Allahabad High
Court cannot in any manner be said to completely absolve the
Appellant from all blame, including from the factum of having
suppressed his removal upon his premature return from
Bundelkhand University, Jhansi. Thus this argument on the part
of the Appellant is untenable and holds no water.
26. Lastly, the appellant has assailed the impugned order on
the ground that it failed to consider that no misconduct had been
made out against the appellant. In this behalf, it is suffice to say
that the Memorandum dated 2nd November, 2005 clearly spells
out the case of the University of Delhi against the Appellant and
the same is the subject matter of an inquiry pending against the
petitioner. However, without prejudicing in any manner the
conduct of the said inquiry against the appellant, prima facie it
appears that the University of Delhi does have just grounds for
conducting an inquiry into the acts complained of in the
Memorandum dated 2nd November, 2005. The alleged
usurpation of the post of Director ACBR and the concealment of
factum of removal as Vice-chancellor, Bundelkhand University,
Jhansi in our opinion constitute prima facie reason to enquire
into the conduct of the Appellant. In this respect we also find
considerable force in the submission made on behalf of the
respondent that the Appellant did not have any lien on the post
of Acting Director, ACBR, since it was merely an acting
[LETTERS PATENT APPEAL NO. 229/2008] [Page 25 of 26]
assignment which came to an end on the appointment of
Professor Vani Brahmachari vide notification dated
20th September, 1999, and the subsequent appointment by the
Respondents of Daman Saluja as Acting Director in the place of
Vani Brahmachari, which appointments have never been
challenged by the Appellant herein in any proceeding.
27. Furthermore, no grounds have been set out by the Appellant
for seeking the quashing of the resolution dated 17th October,
2005 and there is nothing urged on behalf of the Appellant to
show whether there was any jurisdictional error on the part of
the Respondents in either passing the resolution dated the
17th October, 2005 or the steps that have been taken thereafter
by the University of Delhi. On the contrary as is evident from
Clause 6 of the Annexure to Ordinance XI, the University of
Delhi was duly empowered to take action in this behalf against
the Appellant.
28. For the foregoing reasons, we find no infirmity in the
impugned order. Consequently the appeal is without any merit
and is hereby dismissed. No costs.
SIDDHARTH MRIDUL, J
MADAN B. LOKUR, J
May 21, 2009
bp
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