JUDGMENT
Indira Banerjee, J.
1. This writ application is directed against the suspension of the petitioner who is the Principal of a reputed girls’ college of South Calcutta, namely, Jogamaya Devi College.
2. The order of suspension has been passed in a hurriedly convened emergency meeting of the Governing Body of the college held on 7th September, 2004 at the residence of Sri Asokendu Roy, President of the Governing Body, located about 10 kilometres away from the college premises.
3. The Governing Body meeting was attended amongst others by Sri Asokendu Roy, President of the Governing Body and Sri Anil Mukherjee, local Councillor and member of the Governing Body. Apart from Sri Asokendu Roy and Anil Mukherjee the meeting was attended by 2 non-teaching employees being members of the Governing Body, namely, Aniruddha Chakraborty and Dulal Mondal, three teachers’ representatives in the Governing Body, namely. Dr. Ashok Baral, Ms. Indrani Mukherjee and Ms. Maitreyi Bardhan Roy and the students’ representative in the Governing Body Ms. Sukanya Banerjee. The decision to suspend the petitioner appears to be unanimous.
4. Under Section 11 of the West Bengal College Teachers (Security of Service) Act, 1975, hereinafter referred to as the said 1975 Act, the Governing Body of a college might place a teacher under suspension, where an enquiry against the teacher pending or is contemplated or where a case against the teacher in respect of any criminal offence involving moral turpitude is under investigation or trial. The definition of ‘teacher’ in Section 2(9) of the said 1975 Act includes the Principal.
5. In view of Section 11(2) of the said 1975 Act, every order of suspension is required to be communicated to the Vice-Chancellor of the University to which the college is affiliated, within a fortnight from the date of such order. On a purposive and meaningful interpretation, Section 11(2) of the said 1975 Act must be construed to confer implied power on the Vice-Chancellor of the affiliating University to interfere with an order of suspension, as otherwise the requirement for communication of an order of suspension, to the Vice-Chancellor, would be rendered an idle formality.
6. In the case of B.R. Patel v. State of Maharashtra reported in AIR 1968 SC 800 and in the case of V.P. Gindronia v. State of Madhya Pradesh reported in AIR 1970 SC 1494 cited by Mr. Das appearing on behalf of the college authorities, the Supreme Court held that an employer had the inherent right to suspend an employee in contemplation of disciplinary proceedings. Similar view has been taken by the Punjab and Haryana High Court in the case of Arun Malik v. State of Haryana reported in 2002 (3) SLR 217 and a learned Single Judge of this Court in the case of Sukhendu Bikash Thikadar v. Chairman, Nadia Gramin Bank reported in 2002 (2) SLR 459.
7. There can hardly be any doubt that the Governing Body of a college has the power to suspend teachers, including the Principal, in the circumstances, contemplated in Section 11(1) of the said 1975 Act. Exercise of the power to suspend under Section 11 of the 1975 Act is, however, discretionary and not mandatory. The Governing Body may not, therefore, suspend a teacher, notwithstanding existence of the circumstances specified in Sections 11(1)(a) and 11(1)(b) of the said 1975 Act.
8. The discretion of the Governing Body of a college to suspend a teacher is not unfettered and cannot arbitrarily be exercised. Even if the circumstances specified in Sections 11(1)(a) and 11(1)(b) of the 1975 Act exist, the Governing Body must consider the question of whether suspension of the concerned teacher is really necessary. Furthermore, the power to suspend has to be exercised in strict conformity with statutes, rules and regulations in force.
9. An order of suspension is not immune from judicial scrutiny under Article 226 of the Constitution. In the case of State of Kerala v. K.C. George, reported in 1984(1) Labour Law Journal 512, on which reliance was placed by Mr. Bhattacharya, appearing on behalf of the petitioner a Division Bench of Kerala High Court upheld the order of a learned Single Judge quashing an order of suspension. The Division Bench held as follows:
“This Rule states that the appointing authority may at any time place a Government servant under suspension where a disciplinary proceeding against him is contemplated. It is fairly settled that the executive has no absolute power in administrative matters. The constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State including the Government Acts bona fide and within the limits of its power. The primary purpose of administrative law is the imposition of the checks on the powers of the Government or its officers, so that they may not either abuse their powers or go out of their legal bounds. Article 14 strikes at arbitrariness in State action and requires that the State action must be based on valid and relevant principles applicable alike to all similarly situated and it must not be guided on extraneous or irrelevant considerations because an action that is arbitrary must involve negation of equality. This position appears to be settled by the decisions of Supreme Court in Pratap Singh v. State of Punjab, AIR 1964 SC 72, E.P. Royappa v. State of Tamil Nadu, 1974(1) LLJ 172, Maneka Gandhi v. I.A. Authority of India, 1997(II) LLJ 217, Air India v. Nargesh Meera, 1981(II) LLJ 314 and D.S. Nakara v. Union of India, 1983(1) LLJ 104.
10. In the case of Sudhir Banerjee v. Superintendent of Police, reported in 1979 (2) CLJ 183 this Court in exercise of power of judicial review under Article 226 of the Constitution of India set aside an order of suspension, holding that the conditions precedent for exercising powers of suspension had not fulfilled.
11. In the case of Dipankar Sengupta v. U.B.I. and Ors., reported in 1999 (1) LLJ 208, a Division Bench of this Court held as follows:
“There cannot be any doubt whatsoever that this Court has a limited role to play in the disciplinary proceedings. This Court must confine its jurisdiction of judicial review only in cases of illegality, irrationality or procedural impropriety, but it is also to be borne in mind that a fair procedure is an integral part of the service jurisprudence in the matter of holding departmental proceedings as against a delinquent employee.”
12. The suspension of a permanent Principal of a college in West Bengal cannot be compared with other cases of suspension of an employee by his or her employer, for the decision to suspend is taken by a Governing Body/Managing Committee which comprises inter alia representatives of teachers, non-teaching employees and students who are under the direct administrative control of the Principal.
13. In course of administration of an educational institution, its Head may have to take decisions disliked by teachers, non-teaching employees and students. A strict disciplinarian, fastidious about attendance, punctuality, time schedules for submission of answer scripts and the like could incur the displeasure of at least some of the teachers, non-teaching employees and students. In the instant case itself, various steps taken by the petitioner, as Principal, appear to have caused resentment amongst teachers, non-teaching employees and students.
14. Even if the representatives of teachers, non-teaching employees and students in the Governing Body do not have any personal vendetta against the Head, they could still be under peer pressure, for their continuance in the Governing Body would depend on peer support. It may also be embarrassing for the only students’ representative sharing a podium with his/her own teachers to oppose a resolution proposed by them.
15. The Governing Body of a college affiliated to Calcutta University comprises about 14 members, which include the Principal of the college ex officio, four representatives of teachers, two representatives of non-teaching employees, one students’ representative, two nominees of the Government, two nominees of the Syndicate of Calcutta University, not more than two nominees of the Vice-Chancellor and a President selected by the members of the Governing Body.
16. The Governing Body of the college is at present comprised of 13 members. The teachers’ representatives, the representatives of the non-teaching employees and the students’ representatives, taken together, are seven in number and constitute the majority.
17. The tenure of a qualified permanent Principal of a college appointed in accordance with the prevalent recruitment rules, on the recommendation of a statutory College Service Commission is not like that of an elected Chairman or Head of a body who holds office for as long as he enjoys the confidence of the electorate. Yet for all practical purposes the security of service of the Principal of a college virtually depends on majority support in the Governing Body constituted of inter alia subordinates and juniors, who can easily get a difficult Principal out of the way, at least temporarily by issuance of an order of suspension.
18. Unfortunately, the statutory safeguard against arbitrary suspension and/or disciplinary action, available to the Headmaster of a school affiliated to the West Bengal Board of Secondary Education under Rules 28(9) (viia) and 28(8) of the Rules for Management of Non-Government Institutions (Aided and Unaided), 1969, (hereinafter referred to as the 1969 rules) is not available to the Principal of a college.
19. In view of the 1969 rules, particularly Rule 28(8), disciplinary action against a teacher can only be initiated if the West Bengal Board of Secondary Education, an independent body, on consideration of relevant papers including the chargesheet and/or show-cause issued to the teacher, the explanation thereto and the reasons for which disciplinary action is proposed, considers that there are sufficient grounds for taking disciplinary action against the teacher.
20. Under Rule 28(9)(vii)(a) an order of suspension is subject to approval of the Board, an independent body, and automatically stands withdrawn if proceedings are not drawn up within ninety days. The said Rule also expressly enables a teacher aggrieved by an order of suspension to make a representation to the Board.
21. The decision to suspend a Principal of a college taken by a body of persons comprising inter alia subordinates would be subject to strict scrutiny by this Court exercising its power of judicial review under Article 226 of the Constitution of India, more so, when the facts and materials on record indicate likelihood of bias, with fear of suspension hanging like the sword of Damocles no Principal would be able to function independently or take any strong decision, withstanding pressure.
22. This Court in exercise of its power of judicial review under Article 226 of the Constitution of India cannot, therefore, treat the case of suspension of the Principal of a college at par with other cases of suspension of employees by their employers. None of the judgments cited by Mr. Das pertain to the suspension of a Principal of a college. In the instant case, the decision to suspend the petitioner has been taken in a meeting of the Governing Body attended by eight members of whom six are representatives of teachers, non-teaching employees and students, under the direct control of the Principal.
23. The decision to suspend the petitioner has apparently been taken in an emergency meeting of the Governing Body, convened by the President on 7th September, 2004 by circulating a notice dated 4th September, 2004. The meeting, as stated above, was held at the residence of the President about 10 kilometres away from the college premises.
24. The facts and materials on record clearly reveal dissension between the petitioner, as Principal, and a section of the teachers, non-teaching employees and students. From the affidavit-in-opposition, it transpires that there were differences between Dr. Ashok Baral, a teacher member of the Governing Body and the Principal regarding the students’ excursion of the Zoology Department and Dr. Baral declined to accompany the students on their excursion.
25. The teachers’ representatives, students’ representative and the representatives of the non-teaching employees, who attended the meeting of the Governing Body, had jointly lodged a complaint to the Railway authorities against the Principal of the college alleging her complicity in misuse of railway concession facilities enjoyed by college. Annexed to the writ petition is a letter of one J.K. Mitra, Chief Commercial Manager, Eastern Railway addressed to the said members of the Governing Body in response to their complaint. The said letter contains a request to convene a Governing Body meeting to sort out the issue of contradictions between the complaint lodged by the said members and the contentions of the Principal in her letter to the Railways and to intimate the administrative decision to the Railways at the earliest.
26. The Railway authorities might be obliged to take appropriate action for misuse of railway concession facilities. The Railway authorities might also investigate into a complaint of misuse. It is, however, difficult to conceive how the Chief Commercial Manager, a responsible senior officer of the Railways, could have, in his official letterhead, requested selected members of the Governing Body to convene a meeting of the Governing Body of the college, to sort out the internal issue of contradictions between the complaint of misuse lodged by them and the stand of the Principal on the same and to communicate the administrative decision to the Railways at the earliest.
27. Admittedly, the said J.K. Mitra is the husband of a Graduate Laboratory Instructor of the college, not on good terms with the petitioner and one of the charges purported to be framed against the petitioner, is refusal to accept letters written to her by the said Graduate Laboratory Instructor. It is absolutely shocking that failure to claim registered letters from the Post Office within seven days, notwithstanding intimation could constitute charges for initiation of disciplinary proceedings against the Principal of a college.
28. Mr. Bhattacharya submitted that the decision to suspend the petitioner was partly the result of pressure exerted by the said Graduate Laboratory Instructor through her husband, taking advantage of the controversy over allegations of misuse of railway concession facilities and impending suspension of Railway Concession Facilities enjoyed by the college.
29. The reason disclosed for convening an emergency meeting appears to be the alleged refusal of the Principal to convene a meeting of the Governing Body, as per the directions of the President conveyed to the petitioner by a letter dated 2nd September, 2004.
30. According to the college authorities the Principal refused to accept the letter, which was sent through private courier. A copy of the envelope was produced in Court. There is an overwriting in the slip of the courier which indicates that an attempt was made to serve the letter on 3rd September, 2004 at 11.50 a.m., that is, after college hours. There is an overwriting 11.50 having been changed to 11.00 hours. In course of hearing it was stated that service was attempted at 11.30 a.m. It is also somewhat strange that a letter written by the President of the Governing Body from his residence at Kankurgachi, at least 10 kms. away from the college should have been despatched to the Principal through Chowrasia Communications, a courier operating from S. P. Mukherjee Road, that is, the college area.
31. Significantly, it is nobody’s case that the petitioner opened the letter read the contents thereof and refused service. There is nothing on record to show that the letter was, in fact tendered by the concerned courier to the petitioner personally. The letter as disclosed reveals a direction on the petitioner to convene an emergency meeting on 4th September, 2004. The letter was issued on 2nd September, 2004, sent through courier and the Principal was asked to convene an emergency meeting on 4th September, 2004.
32. Even assuming that the petitioner refused to accept the letter dated 2nd September, 2004, the obvious question that arises is, what was the emergency which necessitated such a hurricane meeting, without compliance of the rules and regulations as laid down in the Statutes of the University for convening a meeting of the Governing Body of a college.
33. In this context reference may be made to Statute 98 of the Calcutta University First Statutes, 1979 which is extracted hereinbelow for convenience:
“98. (1) Meetings of the Governing Body of a college shall be held ordinarily in the college premises, and shall be held at least four times in a year.
(2) For a meeting of the Governing Body of a college the quorum shall be 50 per cent of the total number of members of the Governing Body, or if such total number be an odd number, 50 per cent of the total number reduced by one, subject to a minimum of seven.
(3) The Secretary shall send copies of minutes of previous meeting along with the notice of the meeting ordinarily seven days before the date of the meeting. The President may reduce the period of notice in case of emergency.
(4) The Secretary shall call a meeting if the President so directs him in writing or it at least fifty per cent of the members of the Governing Body requisition a meeting with intimation to the President. If, however, such a meeting is not convened by the Secretary within 10 days of direction of President or of receiving such requisition, the President may convene a meeting of the Governing Body himself.”
34. On 4th September, 2004 itself without even ascertaining whether the letter dated 2nd September, 2004 had, in fact, personally been tendered to the petitioner, the President Sri Asokendu Ray concluded that there had been refusal on the part of the Principal to convene a meeting and issued a notice himself, of a meeting to be held on 7th September, 2004 at his own residence.
35. The University nominee and the Government nominee received the notice on 6th September, 2004. The petitioner, it is alleged, did not receive the notice at all. On behalf of the respondent President of the Governing Body, it was alleged, in course of hearing of the writ petition on 12th October, 2004 that the petitioner had also refused to accept the notice dated 4th September, 2004 of the meeting scheduled to be held on 7th September, 2004.
36. Admittedly, the notice was not received by the petitioner. Whether the petitioner refused the notice or not is a factual question which is difficult to decide in proceedings under Article 226 of the Constitution. It is, however, doubtful whether remarks of a private courier can be relied upon, since one courier, after attempting service of the notice on the Principal at the college on 6th September, 2004, which was the day of Janmastami, a day on which the college was admittedly closed, returned the envelope with the remark refused.
37. Under Statute 98(4) quoted above, the President might convene a meeting of the Governing Body himself if such a meeting is not convened by the Secretary within 10 days. In the instant case, the meeting has been convened by the President within 2 days, on the allegation that the Principal refused to convene the meeting.
38. A meeting of the Governing Body is ordinarily to be held at the college premises and ordinarily upon notice of at least 7 days to the members of the Governing Body. The meeting may be held outside the college premises in extraordinary situations and the period of notice might also be reduced in extraordinary situations, where there is an emergency necessitating immediate action.
39. The question in the instant case, is, what was the emergency for holding a meeting without requisite notice of 7 days. Far from notice of 7 clear days, the members of the Governing Body were not even given notice of clear 24 hours.
40. An agenda for the meeting is alleged to have been circulated. As per the agenda, four issues were to be discussed one of them being the alleged irregularities allegedly committed by the petitioner. There was no agenda regarding issuance of any order of suspension against the Principal.
41. The reason for holding the meeting at the residence of the President, 10 Kms. away from the college, is alleged apprehension of obstruction by the petitioner. In this context, it would be pertinent to note that in the affidavit-in-opposition affirmed on behalf of the college authorities, it is alleged that the petitioner attempted to obstruct the Governing Body meeting held at the college on 20th August, 2004, by calling members of the Governing Body outsiders. It is the case of the college authorities that the resolution to initiate disciplinary proceedings against the petitioner had been taken at the meeting held on 20th August, 2004. Had the meeting been disrupted, there would not have been any resolution regarding disciplinary action against the petitioner.
42. There can be no doubt that if any irregularities are committed, appropriate action might have to be taken, whosoever might commit such irregularities. The question is whether alleged irregularities can be countered by equally irregular acts on the part of those in authority. The Governing Body of a college may have power to suspend teaching and non-teaching employees including the Principal of the college as observed above. The power to suspend should, however, be exercised with caution in strict compliance with rules.
43. After the suspension a chargesheet has been issued to the petitioner. A copy of an undated letter enclosing a chargesheet dated 13th September, 2004 and the accompanying Statement of Articles of Charges has been disclosed by the college authorities in their affidavit-in-opposition. Although as rightly submitted on behalf of the respondents and agreed to on behalf of the petitioners, the chargesheet is not in issue in the instant proceedings, it may be necessary to look into the charges for the purpose of ascertaining the urgency far convening an emergency meeting without notice of 7 days.
44. The Articles of Charges, are briefly, (1) misappropriation and defalcation of college funds during the period April, 2001 to March, 2004 by drawal of excess amount towards telephone bills violating a stipulation that a maximum sum of Rs. 400/- would be borne by the college; (2) receipt of donations from students and guardians during the financial years 2000-01, 2001-02 and 2002-03 in arbitrary manner without uniformity and without approval of the Governing Body; (3) acts of serious insubordination to the Governing Body and other higher authorities and distortion of facts in agenda and resolutions of Governing Body meetings and distortion in presentation of facts to other authorities; (4) violation of extant norms and rules of Calcutta University during the years 2002-2003 and 2003-2004; (5) dereliction of duty as Center-in-Charge for the University examinations of the year 2003; (6) Tampering of official records and false statements to Enquiry Teams sent by Calcutta University; (7) motivated malicious and partisan treatment towards certain teachers of the college with a view to denigrating and harassing them; (8) failure to comply with Railway rules governing use of railway concession facility for students’ educational excursion resulting in prolonged suspension of said facilities by Eastern & South Eastern Railways to the detriment of the students of the college; (9) non-co-operation with the Probe Committee, attempts to obstruct its functioning and attempts to obstruct placing of report of Probe Committee by various means including refusal to convene meetings, (10) creation of dissension and disputes by assigning duties and functions to persons unrelated to the same, bypassing staff responsible for such functions; (11) refusal to accept many important letters addressed to the Principal whether delivered by hand or by post, and instructions to the college office not to accept letters thereby putting the staff to inconvenience and harassment.
45. Annexure II to the chargesheet contains the statement of misconduct or misbehaviour or lapses in support of the Articles of Charges referred to above. Paragraph A1 which relates to the first article of charge specifies the telephone bills drawn by the petitioner. Significantly, the last telephone bill alleged to have been drawn without the signature of the Bursar is for the period from December, 2003 to January, 2004.
46. Paragraph A2 in relation to the second article of charge merely states that the petitioner as Principal of college collected donations for the year 2000-01, 2001-02 and 2002-03 without authority from the Governing Body and keeping the Governing Body in dark about such donations “as has been borne out from the statement of collections during those years.” Statements of donations were admittedly maintained. The donations were collected on behalf of the college. There is no allegation against the petitioner of embezzlement.
47. The acts of misconduct mentioned in Paragraph A 3 of the Statement in connection with the third article of charge of insubordination is the refusal to convene meetings of the Governing Body, as a result whereof important issues could not be discussed and decisions could not be taken by the Governing Body.
48. Refusal of a Principal to convene a meeting of the Governing Body is no ground for an emergency meeting, for the statute itself empowers the President of the Governing Body to convene a meeting if the Secretary fails to do so within 10 days of requisition. The allegation of inability to discuss important issues or to take important decisions by reason of alleged refusal of the petitioner to convene meetings is ex facie frivolous.
49. The charges against the petitioner of insubordination are interesting and give a clear indication of complete bias against the petitioner. The first allegation against the petitioner is of convening a meeting at 77, Ashutosh Mukherjee Road, Cal-26 in spite of President’s instruction not to convene any meeting outside the college premises. The correspondence disclosed that the college library is at the said premises. The premises are, therefore, part of the college.
50. The next allegation is that the Principal justified her action by falsely claiming that the premises were owned by the college and accusing the President of a deadlock detrimental to the health of the college. The petitioner in addition questioned the authority of the President to recall any meeting of the Governing Body called by the Secretary of the Governing Body. Justifying an action of convening a meeting at a particular location can neither amount to insubordination nor warrant suspension and initiation of disciplinary proceedings. Furthermore, in the absence of any provision in the statute whereby the President can recall a meeting called by the Secretary of the Governing Body, the alleged action of the petitioner in questioning the authority of the President to recall the meeting convened by her cannot amount to misconduct. In any case, the controversy pertains to the year 2003.
51. It is alleged that in spite of a decision taken by majority of the Governing Body members in a meeting on 10th July, 2004 not to accept the resignation of the President in view of the letter of the President expressing his willingness to continue as President of the Governing Body, the Principal wrote a letter to the Pro-Vice-Chancellor (Academic) of Calcutta University, questioning the validity of continuance of Sri Asokendu Ray as President of the Governing Body.
52. It is not in dispute that the President tendered his resignation. Whether resignation once tendered, could have been withdrawn is a question of law which does not require decision in the instant case for the reasons stated hereinafter. Questioning the legality of the withdrawal of resignation and seeking clarification from the Pro-Vice-Chancellor of the University cannot and does not amount to insubordination of superior authority. In any event, even after the letter was written, a meeting of the Governing Body was convened by the President on 20th August, 2004.
53. It is further alleged that the petitioner dishonoured the Vice-Chancellor and Pro-Vice-Chancellor (Academic) by neglecting instructions issued by them in the case of Dr. Lekha Mukhopadhyay. The said Dr. Mukhopadhyay appears to have been refused study leave for an overseas assignment notwithstanding a recommendation from the Vice-Chancellor and the Pro-Vice-Chancellor, respectively.
54. First of all, refusal to grant leave to a Professor is not misconduct. Leave cannot be claimed by any teacher as a matter of right. Secondly, it is doubtful whether the Vice-Chancellor and the Pro-Vice-Chancellor have jurisdiction to intervene in the matter of grant of leave to a teacher. In any case the allegations pertain to the year 2001-02.
55. There are allegations against the petitioner regarding practical examination of the University held in 2003. In particular, there are allegations of false claims made by the petitioner before the Enquiry Team sent by University on 27th May, 2003.
56. The making of a false claim may be a serious charge. The allegation, however, pertains to May, 2003. There does not appear to be any finding on the part of the University of any false claim having been made by the Principal of the college. There is, however, a finding of mistrust between the Principal and the staff. Failure to build up a harmonious relationship cannot constitute misconduct.
57. It is also alleged that the petitioner fixed a meeting of the Governing Body on 3rd June, 2004 without the consent of the President. There being no requirement under the Statutes, for consent of the President for holding a Governing Body meeting, failure to obtain consent cannot constitute misconduct.
58. Allegations have been made against the petitioner of distortion of facts in the agenda and the resolutions of the Governing Body. Resolutions are generally confirmed in the following meeting and incorrect recording of minutes can be rectified. It is not the case of the contesting respondents that any minutes required immediate rectification.
59. The fourth charge against the petitioner was of imposition of fine during the year 2002-2003 for short percentage without prior permission and/or approval of the Governing Body. The imposition having subsequently been ratified by the Governing Body, there can be no question of suspension on that ground. The meeting, in which there was a dissension from the student’s representative in the Governing Body, as alleged, took place in 2003.
60. It is also alleged that the petitioner illegally introduced a fine of Rs. 300/- on students whose results were withheld, keeping the Governing Body in dark. The amount realised was termed as administrative fee. It is nobody’s case that there was any defalcation; the amount realized went to the college fund. The realization of fees in anticipation of the approval of the Governing Body cannot and does not warrant suspension of a Principal, when admittedly the amount has been collected on behalf of the college and deposited with the college. It is not the case against the petitioner that she imposed any fees for her own personal benefit or misappropriated the same.
61. It is next alleged that the petitioner showed the librarians as teaching staff in the college prospectus and the teachers’ attendance register and in the Teachers’ Council in violation of the Calcutta University Act, 1979 and continued to do so notwithstanding a warning dated 3rd July, 2003 from the President. Significantly whole-time teachers, whole-time librarians and whole-time physical instructors constitute a single class under Statute 93(1)(c) of the First Statutes of Calcutta University for election of members of the Governing Body. In any event, an error, if any, does not constitute misconduct.
62. The fifth charge regarding the practical examination pertains to the year 2003 and the sixth charge against the petitioner is of distorting the resolution of a meeting held on 1st April, 2003.
63. The allegation in support of the seventh charge against the petitioner is refusal to grant Dr. Lekha Mukhopadhyay study leave with pay despite recommendation from the Vice-Chancellor on 1st August, 2001 and disregarding of instructions issued by the Pro-Vice-Chancellor of the University on 24th September, 2002 to forward the application of Dr. Mukhopadhyay for faculty position in Tata Institute of Social Science.
64. The Principal of a college is in overall charge of the college and is required to oversee academic needs of the college. No teacher can claim study leave as a matter of right. Such study leave has to be granted in accordance with the rules. Moreover, the question of insubordination or disobedience may arise when lawful instructions are issued. Refusal to carry out a direction which a Principal is not obliged to carry out cannot at all constitute misconduct.
65. The allegation in support of the seventh charge, that the name of Professor Uttiya Das of Mathematics was excluded from the list of teachers required to undergo refresher course with a view to depriving the said Prof. Uttiya Das of promotion does not call for any emergency meeting.
66. In support of the seventh charge it is further alleged that the petitioner gave vent to her ill-disposition towards three teacher-members of the Governing Body and humiliated them by unlawfully debarring them from attending the meeting of the Academic Sub-Committee on 21st July, 2003 in spite of their inclusion in the Sub-committee by a clear resolution taken on 14th May, 2002 and confirmed on 20th August, 2002.
67. The fourth allegation in support of the seventh charge is that the petitioner issued a show-cause notice dated 17th February, 2001 to Prof. Uttiya Das threatening disciplinary action against him without approval of the Governing Body. The matter was not reported to the Governing Body and the reply received from Professor Das was also not placed before the Governing Body. Even assuming that the show-cause notice suffered from any legal infirmity the issuance of a show-cause notice cannot constitute misconduct. It further appears that no disciplinary action was taken against Prof. U. Das. The petitioner may not, therefore, have deemed it necessary to place the matter before the Governing Body.
68. The eighth charge pertains to misuse of railway concession facilities in connection with excursion of Zoology department held in December, 2003. The petitioner is alleged to have shielded one Sanjib Ganguly who allegedly travelled without ticket.
69. A person who travels without ticket is liable to be penalized by the concerned Railway authorities. Exercise of discretion by the Principal of a college, not to initiate disciplinary action against a member of the staff, for any aberration not connected with the discharge of his official duties, cannot constitute misconduct. There was no direction or demand on the petitioner for initiation of disciplinary proceedings against the said Sanjib Ganguly.
70. In support of eighth charge it is alleged that the petitioner did not give any reply to the questionnaire handed over to the Principal by the Probe Committee. The direction of the President to the Principal to reply to the questionnaire within seven days, issued sometime in November, 1993 is alleged not been complied with.
71. In support of the tenth charge it is alleged that the petitioner entrusted the Librarian with the duty of determining fines imposed on students when in fact their duties related only to library. Arbitrary and autocratic determination of fines led to discrimination amongst students. It is further alleged that when the Accountant raised objection or queries in respect of bills without supporting papers, the responsibility of dealing with financial matters was taken away from the Accountant and the responsibility entrusted to a junior staff by an order dated 18th August, 2003.
72. It is also doubtful whether the Principal could have been proceeded against for directing Prof. Kundu to function as Teacher-in-Charge or for appointing Dr. Dharitri Tarafdar as Teacher-in-Charge. The directions and/or orders could have been overridden by the Governing Body.
73. The eleventh charge against the petitioner of not receiving letters is preposterous and smacks of total bias and vindictiveness. The letters sent by registered post were not claimed from the Post Office within seven days. The letters sent through courier were returned with remark refused. No show-cause notice has been issued to the concerned clerk or peon responsible for receiving letters. The refusal of the Principal to accept letters of the members of the teaching and non-teaching staff cannot possibly warrant the convening of an emergency meeting for suspension of the petitioner and initiation of disciplinary proceedings against the Principal of a college, far less, failure of the Principal to claim letters from the post office.
74. An emergency meeting of the Governing Body appears to have been convened by the President on 20th August, 2004 where the decision to initiate disciplinary proceedings against the petitioner was taken.
75. There was no development after 20th August, 2004 that necessitated another emergency meeting without requisite notice of 7 days. When the statutes require notice of seven clear days, for meetings of the Governing Body, no meeting can be held without notice of seven clear days unless there is such an emergency that necessitates an immediate decision of the Governing Body, a decision that cannot be delayed even for seven days.
76. The agenda for the meeting contained four items of which two were confirmation of the minutes of two previous meetings, one was discussion of irregularities alleged to have been committed by the petitioner and the fourth item was miscellaneous.
77. As observed above, the decision to initiate disciplinary proceedings having been taken on 20th August, 2004, there could be no emergency on 2nd September, 2004 for convening a meeting without notice of seven clear days. There was no urgent development in the intervening period.
78. Even if any follow up action pursuant to the resolution of 20th August, 2004 was necessary, there was sufficient time for requisitioning a meeting with adequate notice. Delay in requisitioning a meeting is no ground for dispensation of the requirement of notice of seven clear days.
79. The minutes of the meeting held on 7th September, 2004 do not indicate proper deliberation and/or discussion regarding the necessity of suspension of the petitioner. The members of the Governing Body have apparent not seriously applied their mind to the aforesaid issue. A casual statement in the minutes that the Governing Body unanimously agreed to suspend the petitioner considering the seriousness of the charges and to avoid suspension/manipulation of records and elimination of evidence, is not sufficient to uphold an order of suspension.
80. Most of the allegations levelled against the petitioner pertain to a long period of time ranging from 2001-2002 to the first half of 2004 and are ex facie not charges which call for suspension. There was no justification for an emergency meeting without requisite notice of seven clear days.
81. In any event, the serious decision of suspension of the Principal of the college could not have been taken in the meeting held on 7th September, 2004 since the same was not an item specified in the agenda.
82. Three members of the Governing Body, namely, the nominee of Director of Public Instruction and the nominee of the University and one of the teachers’ representatives have taken exception to the convening of an emergency meeting without adequate notice to them. Mr. Milan Kr. Bhattacharya appearing on behalf of the said members of the Governing Body supported the case of petitioner.
83. The University had sent a committee to investigate in depth into the affairs of the college. The report was produced in Court. The committee observed that the painful decision of suspending the Principal of a college had been taken in a huff and in flagrant violation of statutory norms. To quote from the report “though the Principal has behaved in an autocratic manner, such a decision of placing her on suspension crosses boundary of human norms.”
84. The said committee also arrived at the finding that there was no urgency to convene a meeting without statutory notice of 7 days. Unfortunately, notwithstanding the liberty granted by this Court to the University, no decision on the report has yet been taken.
85. In the instant case one Mr. K.K. Bose was appointed Enquiry Officer even before any chargesheet was issued to the petitioner. The decision to appoint K.K. Bose was taken at the meeting held on 20th August, 2004. The said K.K. Bose is a retired Registrar of this Court. It does not appear that the college maintained a panel of Enquiry Officers for conducting enquiry against members of the teaching and non-teaching staff. It is difficult to conceive how a retired Registrar of this Court, totally unconnected with the college could have been appointed Enquiry Officer without even obtaining his consent. The consent of Sri K.K. Bose has been presumed. In case of inability of K.K. Bose to function due to ‘unavoidable circumstances’ Mr. B.B. Mukherjee, another retired Registrar, was to be appointed. The consent of Mr. Mukherjee was also not considered necessary.
86. The appointment of Mr. K.K. Bose, retired Registrar of this Court as Enquiry Officer, indicates that much transpired outside the Governing Body meetings. The decision to proceed against the petitioner appears to have taken before the meeting of the Governing Body. Unofficial talks with the said K.K. Bose and Mr. Mukherjee must have taken place even before the formal decision to initiate disciplinary proceedings against the petitioner.
87. As held by the Supreme Court in its judgment in the case of State of Punjab v. V.K. Khanna reported in AIR 2001 SC 343: it is well-settled in service jurisprudence that an authority has to apply its mind upon receipt of reply to the chargesheet or show-cause notice, as the case may be, as to whether a further enquiry is called for.
88. In the aforesaid case, where appointment of Enquiry Officer had been announced even before reply to the chargesheet was filed, the Supreme Court held that “it cannot be said that the attitude of the authorities towards the delinquent was free and fair.”
89. In the instant case, as observed above. Enquiry Officer has been appointed even before finalisation and issuance of a chargesheet against the petitioner. The attitude of the authorities is far from free and fair. On the other hand, the action clearly establishes bias against the petitioner.
90. The main ground of challenge to the order of suspension impugned in the writ petition, as made out by the petitioner in the writ petition, is want of authority of the President of the Governing Body to convene a meeting.
91. It is strongly contended that the President having tendered his resignation, he had no authority to convene any emergency meeting. It is argued that resignation once tendered could not have been withheld.
92. On behalf of the college authorities, however, it has been submitted that the President withdrew the letter of resignation prior to its acceptance by the Governing Body. Furthermore, the members of the Governing Body took a resolution to request the President to continue.
93. It is not necessary to this Court to decide the question of whether the President could have withdrawn his resignation or whether he continued to be President since this Court is of the view that even assuming that the President continued to be President and that his resignation was never accepted, the calling of an emergency meeting without 7 days clear notice to the members at premises located about 10 kilometres away from the college premises was in itself illegal.
94. The holding of the emergency meeting in hot haste being illegal and uncalled for all resolutions taken in the said meeting including the suspension of the petitioner are liable to be set aside by this Court.
95. Mr. Das appearing on behalf of the petitioner strongly contended that the entire case of the petitioner in the writ petition was that the President having tendered resignation could not have convened a meeting. This Court cannot, therefore, now consider the submission of the petitioner that the hurriedly convened meeting on 7th September, 2004 without requisite notice is illegal.
96. The power of the President to convene the emergency meeting without requisite notice of 7 days is essentially a question of law that can be decided on the basis of the materials already on record. I am unable to accept the contention of Mr. Das that the aforesaid question cannot be decided having regard to the pleadings and the prayers in the writ petition. The prayers have been amended pursuant to an earlier order of Court and there is now a specific prayer for setting aside the suspension order.
98. Mr. Das also cited judgments of the Supreme Court in the cases of UOI v. A.N. Saxena and UOI v. Ashok Kakkar reported in 1992 (3) SCC 124 and 1995 (1) Suppl. SCC 180 respectively. In the first case the Supreme Court held that when charges are serious the Tribunal should be cautious in granting stay of disciplinary proceedings in exercise of its power of judicial review. There can be no dispute with the aforesaid proposition of law. The second judgment, which also pertains to judicial review of a chargesheet, was rendered in the facts of the case.
99. In the judgment in the case of UOI v. Upendra Singh reported in 1994 (3) SCC 357 cited by Mr. Das, the Supreme Court held that this Court does not in exercise of its power of judicial review consider the correctness of charges. Interference with charges is not warranted unless charges ex facie do not disclose misconduct. Since the chargesheet is not in issue in the instant case, the said judgment has no application.
100. In the judgments in the case of Secretary of Government and Anr. v. Muniappan reported in 1997 (4) SCC 255 and in the case of Secretary of Government, Prohibition and Excise Department v. L. Srinavasan reported in 1996 (3) SCC 157, the Supreme Court was of the view that suspension pending investigation into embezzlement was permissible notwithstanding delay. In the case of L. Srinivasan, the embezzlement was to the tune of Rs. 7.82 crores and the Supreme Court was in the facts of that case, of the view that there was bound to be delay in investigation. In the instant case, there is no allegation against the petitioner of embezzlement or misappropriation.
101. The judgment of the High Court of Rajasthan in the case of D.R. Kala v. State of Rajasthan reported in 1997(7) SLR 498 pertains to the power of the authority in that case to issue an order of suspension. The power of the Governing Body to issue an order of suspension is not in issue in the instant case. The question in the instant case is whether the power to suspend has properly been exercised.
102. The conduct of the college authorities smack of bias and vindictiveness against the petitioner. This is evident from the nature of the charges against the petitioner and the allegations in support of the charges as well as facts and materials on record.
103. Individual grievances of teachers and non-teaching employees, against adverse decisions of the petitioner, in her capacity as principal, have constituted the basis of charges against the petitioner for initiation of disciplinary proceedings, for example, refusal to grant leave to Dr. Lekha Mukherjee in 2001-2002. Even a letter of a clerk complaining against a direction of the petitioner to use a typewriter instead of the computer has been used as a document in support of the charges against the petitioner.
104. The alleged failure of the principal to claim registered letters written by a Graduate Laboratory Instructor from the post office within seven days of intimation forms the basis of a charge against the principal in disciplinary proceedings.
105. Many of the allegations levelled against the petitioner are ex facie, frivolous and do not constitute misconduct. Disciplinary action has been initiated in respect of administrative decisions which have been approved by the Governing Body, for example, the imposition of fine for shortfall in attendance and collection of donation on behalf of the college. It is nobody’s case that the fines were imposed or donations collected for the petitioner’s own benefit. There is also no allegation of defalcation of funds.
106. Even though errors of judgment cannot constitute misconduct as held by the Supreme Court in the case of J. Ahmed v. Union of India reported in AIR 1979 SC 1022 cited by Mr. Bhattacharya, the petitioner has been charge-sheeted for erroneous decisions.
107. The college authorities did not even hesitate to initiate a complaint against the Principal with the police immediately after her suspension or to issue written instructions to the security personnel of the college to not even let her enter the college premises.
108. As already observed, there could be no doubt that the Governing Body has power to suspend the Principal of a college. It is also not in dispute that this Court does not ordinarily interfere with orders of suspension. The instant case is, however, extraordinary. The meeting, in which the decision to suspend the petitioner has been taken, being illegal, all decisions/resolutions taken in the meeting, including the decision to suspend the petitioner are liable to be set aside and quashed. Furthermore, none of the allegations against the petitioner warrant suspension of the petitioner at this stage.
109. For the reasons discussed, writ application is, therefore, allowed. The impugned order of suspension of the petitioner is set aside and quashed. The respondents shall forthwith allow the petitioner to resume her duties as Principal of the college.
110. Mr. Kishore Dutta appearing on behalf of the college authorities prays for stay of operation of the judgment and order.
111. The prayer for stay is considered and refused.
112. The originals of the documents submitted in Court be returned to the respective parties in course of the day.
113. Let an urgent xerox certified copy of this order be supplied to the learned Advocates for the parties on usual undertakings.
114. Let xerox copies of operative part of this order duly countersigned by Asstt. Registrar (Court) be supplied to the learned Advocates for the parties subject to compliance with requisite formalities.