IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 28/03/2006
Coram
THE HON'BLE MR. A.P.SHAH, THE CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN
Writ Appeal No.3642 of 2002
The University of Madras
rep. by its Registrar,
University Building,
Chepauk,
Chennai-600 005. .. Appellant
-Vs-
1. Dr.Maa.Selvaraasan
2. Professors' Forum of
Madras University
rep. by its General Secretary
Prof. N.Deivasundaram,
University of Madras,
Chennai-5.
(R2 impleaded as respondent
as per order of Court
dt. 6.3.2003 made in
W.A.M.P.No.847 of 2003) .. Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 14.11.2002 passed in Writ Petition No.35181 of 2002 on the file of
this Court.
!For appellant : Mr.N.R.Chandran
Senior Counsel
for Mr.Kandavadivel Doraisamy
^For respondent 1: Mr.R.Gandhi
Senior Counsel
for Mr.M.Meikandan
:JUDGMENT
(Judgment of the Court was delivered by
The Honourable The Chief Justice)
This writ appeal has been filed by the University of Madras
challenging the order of the learned single Judge setting aside the order of
compulsory retirement passed by the appellant University by way of punishment
imposed on the respondent.
2. Briefly stated the facts leading to this appeal are as follows:
The respondent was serving as a Professor in the Department of Tamil
Language of the appellant University. When the appellant University created a
Department of Contemporary Tamil Literature, on 11.5.1998, he was appointed as
its Head. By order dated 19.11.1999 the respondent was placed under
suspension for various acts of indiscipline. A charge memo was issued in
respect of the misconduct committed by him. The charge against the respondent
was that despite written instructions issued in Letter No.D.1(A)/TE/99/10
dated 24.2.1999 and also in the Letter No.D.1(A)/TE/99/392 dated 24.2.1999
based on the resolution of the Syndicate dated 12.2.1999, prohibiting any form
of demonstration, fasting, meeting, etc. by the staff of the University
inside the campus, the respondent led the MUTA members to observe a fast in
front of the Centenary Building in connection with certain demands of MUTA on
25.2.1999 on which date the Syndicate was scheduled to meet. It is further
alleged that after the Syndicate meeting was over, the respondent along with
the other members of MUTA demanded that the Vice-Chancellor should issue
promotion orders to the teachers based on the resolution of the Syndicate on
the very same night (i.e. on 25.2.19 99) however late it might be. When the
Vice-Chancellor expressed his inability to do so, the respondent threatened
the Vice Chancellor that he would not allow the Vice Chancellor to leave the
campus. Acting on this threat, the respondent and about 25 teachers under his
leadership, blocked the exit for the Vice-Chancellor’s car. The Vice
Chancellor was finally able to leave the premises only after 9.00 p.m. by
which time, the respondent took the demonstrators to hold a meeting in the
Senate Hall. The respondent and the demonstrators vacated the premises only
after 11.30 p.m. that night after they succeeded in getting the promotion
orders they wanted from the Registrar in-charge. It was further alleged that
consequent on the suspension of the newly instituted Department of
Contemporary Tamil Literature, the membership of the respondent in the
Academic Council as well as in the Senate had ceased and he was also informed
of this fact vide letter No.V.1 /AC&SEN/99/426 dated 24.5.1999.
Notwithstanding this, on 13.11.1999, the respondent, along with
Dr.S.Govindasamy, Professor, Department of Economics, PG Extension Centre,
Vellore, who were not members of the Senate, unauthorisedly entered the
meeting hall of the Senate when the proceedings of the Senate were in
progress. In spite of the repeated directions from the Chair that the
non-members of the Senate should withdraw from the hall, he did not do so and
caused adjournment of the rest of the proceedings of the Senate.
3. As per the resolution of the Syndicate dated 22.10.1999, the Vice
Chancellor appointed one Sri B.Vijayaraghavan, Retired I.A.S. Officer to
conduct an enquiry in respect of the charges framed. The Enquiry Officer
conducted a detailed enquiry wherein the respondent also participated. The
Enquiry Officer found that the charges had been proved and submitted the
enquiry report to the Syndicate. The Syndicate considered the same and gave
opportunity to the respondent to submit further representation. The
respondent submitted a detailed representation. The Syndicate considered the
same, and by the impugned resolution, the Syndicate imposed a punishment of
Compulsory Retirement on the respondent. This decision of the Syndicate was
duly approved by the Chancellor.
4. The order of Compulsory Retirement was challenged by the respondent by
filing the present writ petition under Article 226 of the Constitution of
India. In the writ petition, the respondent had not raised any factual
dispute about the details of the occurrence mentioned in the charge memo or
assailed the findings of the Enquiry Officer. In the light of the arguments
advanced at the Bar, the learned single Judge framed the following issues:
(i) Whether the mala fide attributed against the former Vice Chancellor for
having initiated the impugned disciplinary action vitiates the impugned
decision of the compulsory retirement of the petitioner by the Syndicate?
(ii) Whether the impugned disciplinary proceedings vitiates with respect to
the charges, namely Charge Nos.I, II and IV, as they were not placed for the
consideration of the Syndicate for sanction before initiating the impugned
disciplinary action and the enquiry thereunder?
(iii) Whether the impugned disciplinary action as well as the consequential
decision of compulsory retirement by the Syndicate is bad as the same is based
on the report of an Enquiry Officer, who is not a member of the Syndicate, as
the very appointment of the Enquiry Officer is contrary to Section 19(y) of
the Act?
(iv) Whether or not the Senate is empowered to review the impugned act of the
Syndicate exercising the powers conferred under Section 15 of the Act?, and
(v) To what relief the petitioner is entitled to?”
5. The learned single Judge decided the issue Nos.1 and 2 against the
respondent, but on issue Nos.3 and 4 held in favour of the respondent and
consequently, set aside the order of compulsory retirement. The learned
single Judge held that the decision of compulsory retirement by the Syndicate
was bad as the same was based on the report of the Enquiry Officer who is not
a member of the Syndicate as the very appointment of the Enquiry Officer is
contrary to Section 19(y) of the Madras University Act (hereinafter referred
to as the ‘Act’). The learned single Judge also held that the Senate being
the Supreme Governing Body is empowered to review the action of the Syndicate,
if such action of the Syndicate is contrary to the powers conferred under the
Act.
6. The principal question which falls for our consideration is
whether the appointment of an outsider viz. Sri B.Vijayaraghavan, a Retired
I.A.S., who is not a member of the Syndicate to hold an enquiry into the
charges levelled against the respondent is contrary to the provisions of
Section 19(y) of the Act. The power to take disciplinary action is vested
with the Syndicate under Section 19(h) of the Act which reads as follows: –
19. The Syndicate shall have the following powers, namely:-
(h) to suspend and dismiss the University Professors, Readers and
Lecturers, and the Teachers and servants of the University.
19(y) of the Act reads as follows:
To delegate any of its powers to the Vice Chancellor, to a Committee
from among its own members or to a Committee appointed in accordance with the
Statutes.
Pursuant to the power conferred by Section 19(y) of the Act, the Syndicate
delegated its powers to the Vice Chancellor as a delegate vide resolution
dated 22.10.1999. The Resolution reads as follows:
” RESOLVED that the delegation of powers to the Vice Chancellor to conduct
enquiry in relation to the disciplinary proceedings against the Teaching Staff
by himself or through a Committee constituted by him in addition to the powers
already granted to him by the Syndicate at its meeting held on 17.2.1979 be
approved.”
The Vice Chancellor appointed Sri B.Vijayaraghavan as an Enquiry Officer to
make enquiry and submit a report, and on the basis of the report, the
Syndicate imposed the punishment of Compulsory Retirement on the respondent.
7. Mr.N.R.Chandran, learned Senior Counsel appearing for the
appellant University strenuously contended that as per the regulation, the
entire powers of the Syndicate had been delegated to the Vice Chancellor.
Hence the Vice Chancellor assumes all the powers of the Syndicate. The
resolution also gives option to take disciplinary proceedings through a
committee. According to Mr.Chandran, when the Vice Chancellor appoints an
Enquiry Officer, it is not further delegation, but exercising the powers of
the Syndicate entrusted to him. The delegation enjoins the Vice Chancellor to
initiate action as a disciplinary authority and therefore, he can appoint an
Enquiry Officer for the purpose of conducting an enquiry.
8. We find considerable substance in the submission of the learned
senior counsel. The statutes of the University do not deal with the procedure
to be followed in disciplinary proceedings. In Writ Petition No.17282 of
1994, a learned single Judge of this Court had observed that it is high time
that the procedure should be prescribed (See A.G.Venkataraman vs. The
University of Madras rep. by its Registrar, Madras). In view of the
judgment, a resolution was passed by the Syndicate to follow the Tamil Nadu
Civil Service Classification (Control and Appeal) Rules applicable to the
Government servants while taking disciplinary action against the University
employees. This resolution was passed on 22.8.1997. Section 17(b) of the
Tamil Nadu Civil Service Classification (Control and Appeal) Rules provides
for a reasonable opportunity to a charged employee to defend his case. By
following the procedure under Rule 17(b), the University has provided a
reasonable opportunity to the respondent. There is nothing in the statutes of
the University or in the University Act which prohibits the appointment of any
person or body to conduct or hold the enquiry. As there is no express
prohibition, the normal rule applicable to such cases will come into play.
9. In Pradyat Kumar Bose vs. The Hon’ble Chief Justice of Calcutta
High Court (AIR 1956 SC 285), the question arose whether the Chief Justice of
the High Court can delegate to another Judge an enquiry of charges against a
member of the High Court staff. Answering the question in the affirmative,
the Supreme Court said:
” The first objection that has been urged is that even if the Chief
Justice had the power to dismiss, he was not, “in exercise of that power,
competent to delegate to another Judge the enquiry into the charges but should
have made the enquiry himself. This contention proceeds on a misapprehension
of the nature of the power.
As pointed out in ‘Barnard v. National Dock Labour Board, (1953) 2 Q.B.18 at
40(B), it is true that “no judicial tribunal can delegate its functions unless
it is enabled to do so expressly or by necessary implication.” But the
exercise of the power to appoint or dismiss an officer is the exercise not of
a judicial power but of an administrative power. It is nonetheless so, by
reason of the fact that an opportunity to show cause and an enquiry simulating
judicial standards have to precede the exercise thereof.
It is well-recognized that a statutory functionary exercising such a power
cannot be said to have delegated his functions merely by deputing a
responsible and competent official to enquire and report. That is the
ordinary mode of exercise of any administrative power. What cannot be
delegated except where the law specifically so provides is the ultimate
responsibility for the exercise of such power. As pointed out by the House of
Lords in Board of Education v. Rice, 1911 A.C. 179 at 182(C), a functionary
who has to decide an administrative matter, of the nature “involved in this
case, can obtain the material on which he is to act in such manner as may be
feasible and convenient, provided only the affected party “has a fair
opportunity to correct or contradict any relevant and prejudicial material.”
The following passage from the speech of Lord Chancellor in local Government
Board v. Arlidge, 1915 A.C. 120 at 133, is apposite and instructive.
” My Lords, I concur in this view of the position of an administrative body to
which the decision of a question in dispute between parties has been
entrusted. The result of its inquiry must, as I have said, be taken, in the
absence of directions in the statute to the contrary, to be intended to be
reached by its ordinary procedure. In the case of the Local Government board
it is not doubtful what this procedure is. The Minister at the head of the
Board is directly responsible to Parliament like other Ministers. He is
responsible not only for what he himself does but for all that is done in his
department. The volume of work entrusted to him is very great and he cannot
do the great bulk of it himself. He is expected to obtain his materials
vicariously through his officials, and he has discharged his duty if he sees
that they obtain these materials for him properly.
” To try to extend his duty beyond this and to insist that he and other
members of the Board should do everything personally would be to impair his
efficiency. Unlike a Judge in a court he is not only at liberty but is
compelled to rely on the assistance of his staff.”
In view of the above clear statement of the law the objection to the validity
of the dismissal on the ground that the delegation of the enquiry amounts to
the delegation of the power itself is without any substance and must be
rejected.” (emphasis supplied)
10. The question was again considered in State of Uttar Pradesh v.
Batuk Deo Pati Tripathi, 1978 All.L.J 477. The contention before the court
was that the constitution of administrative committees for the purpose of
dealing with matters which the High Court is bound to deal with under Article
235 of the Constitution of India would itself be bad and it is the entire High
Court which should exercise the powers vested in it under Article 235 of the
Constitution. Rejecting the said contention the Supreme Court said: –
The relevant part of Art.235 of the Constitution provides that the control
over District Courts and Courts subordinate thereto shall be vested in the
High Court. Since Art.216 provides that every High Court shall consist of a
Chief Justice and such other Judges as the President may frame from time to
time deem it necessary to appoint. Art.23 5 has to be construed to mean that
the control over District Courts and courts subordinate thereto is vested in
the entire body of Judges who together constitute the High Court and not in
the Chief Justice as representing the High Court or an Administrative Judge or
a smaller body of Judges acting as an Administrative Committee. But though
the control over subordinate courts is vested institutionally in the High
Courts by Art.235 it does not follow that the High Courts have no power to
prescribe the manner in which that control may in practice be exercised. In
fact, the very circumstances that the power of control, which comprehends
matters of a wide-ranging variety, vests in the entire body of Judges makes it
imperative that rules must be framed to make the exercise of control feasible,
convenient and effective. The seeds of the jurisdiction to frame rules
regulating the manner in which the control over subordinate courts is to be
exercised are thus to be found in the very nature of the power and in the fact
that the power vests in the entire body of Judges. The High Court has,
therefore, the power under Art.235 itself to frame rules for regulating the
manner in which the control vested in it may be exercised. The power to do a
thing necessarily carries with it the power to regulate the manner in which
the things may be done. It is an incident of the power itself and indeed,
without it, the exercise of the power may in practice be fraught with
difficulties which will frustrate, rather than further the object of the
power. It is undoubtedly true that the rules framed for prescribing the
manner in which a power may be exercised have to be truly regulatory in
character. The reason is that under the guise of framing rules, the essence
of the power cannot be permitted to be diluted. But that is a separate matter
which we will consider later. The limited object of the present discussion is
to show that High Courts possess the power under Art.235 to prescribe the
manner in which the control over subordinate courts vested in them by that
article may be exercised. That explains why the Allahabad High Court framed
Rules of 1952 not only in the exercise of power possessed by it under Art.235,
but in the exercise of all other powers enabling it in that behalf. One of
such powers is to be found in Art.235 itself and therefore the abstract power
of the High Court to frame the impugned rules cannot be doubted and must be
conceded.
Having given our close and anxious consideration to that question, we regret
that we are unable to share the view of the majority of the High Court Full
Bench that by leaving the decision of the question of the respondents
compulsory retirement to the administrative committee, the court had abdicated
its constitutional function.
Here, the decision to compulsorily retire the respondent was taken by the
Judges of the High Court itself, though not by all. If some but not all
Judges of the High Court participate in a decision relating to a matter which
falls within the High Courts controlling jurisdiction over subordinate
Courts, the High Court does not efface itself by surrendering its power to an
extraneous authority. The procedure adopted by the High Court under its Rules
is not subversive of the independence of the subordinate judiciary which is
what Art.235 recognises and seeks to achieve. The true question then for
decision is not the one by which the majority of the Full Bench felt oppressed
but simply whether the procedure prescribed by the High Court Rules is in any
other manner inconsistent with the terms of Art.235 of the Constitution.
16. For answering this question it is necessary in the first place to bear in
mind that the power of control over the subordinate courts which is vested in
the High Courts comprises such numerous matters. Often involving
consideration of details of the minutest nature, that if the whole High Court
is required to consider every one of those matters the exercise of control
instead of becoming effective will tend to cause delay and confusion in the
administration of justice in the State. A construction which will frustrate
the very object of the salient provisions contained in Art.235 ought, insofar
as possible, to be avoided. The control vested in the High Courts by that
article comprehends, according to our decisions, a large variety of matters
like transfers subsequent postings, leave, promotions other than initial
promotions, imposition of minor penalities which do not fall within Art.311,
decisions regarding compulsory retirements, recommendations for imposition of
major penalities which fall within Art.311, entries in character rolls and so
forth. If every Judge is to be associated personally and directly with the
decision on every one of these matters, several important matters pertaining
to the High Courts administrative affairs will pile into arrears like court
arrears. In fact, it is no exaggeration to say that the control will be
better and more effectively exercised if a smaller committee of Judges has the
authority of the court to consider the manifold matters falling within the
purview of Art.235. Bearing in mind therefore the nature of the power which
that article confers on the High Court, we are of the opinion that it is wrong
to characterise as delegation the process whereby the entire High Court
authorizes a Judge or some of the Judges of the Court to act on authorization
effectuates the purpose of Art.235 and indeed without it the control vested in
the High Courts over the subordinate courts will tend gradually to become lax
and ineffective. Administrative functions are only a part, though an
important part, of the High Courts constitutional functions. Judicial
functions ought to occupy and do in fact consume the best part of a Judges
time. For balancing these two-fold functions it is inevitable that the
administrative duties should be left to be discharged by some on behalf of all
the judges. Judicial functions brook no such sharing of responsibilities by
any instrumentality.
11. In Saradha Balakrishnan vs. The Director of Collegiate Education
(1995 (1) MLJ Reports 610), a Division Bench of this Court rejected the
argument that it is only the college committee which is bound to hold
disciplinary enquiry from the beginning, and it had no power to appoint
enquiry officer to conduct enq uiry. Srinivasan, J speaking for the Bench
observed: –
It is a general principle of law that in any disciplinary matter, the
disciplinary authority is entitled to nominate an enquiry officer, who will
only record the evidence and submit his finding. Such finding is certainly
not binding on the disciplinary authority. It is for the disciplinary
authority to go into the evidence and other materials collected by the enquiry
officer and come to a conclusion on its own. This position has been
recognized by the Supreme Court in Union of India v. H.C.Geol, AIR 1984 SC
364: (1964) 1 S.C.W.R 28. The contention in that case was that the report of
the enquiry officer was in favour of the delinquent officer and that should
have been accepted by the disciplinary authority. That contention was
rejected and the Court held that the report of the enquiry officer is only to
help the disciplinary authority to consider the matter and come to a
conclusion and there is no rule that it should be accepted. It is for the
disciplinary authority to decide whether the report should be accepted or
not.
12. In the light of the established legal position, it is not
possible to agree with the view taken by the learned single Judge that the
Vice Chancellor had delegated his power to the enquiry officer. We have
already pointed out that the Syndicate delegated its power to the Vice
Chancellor to take disciplinary action, and the Vice Chancellor appointed an
independent enquiry officer to hold an enquiry into the charges leveled
against the respondent and su bmit a report. On the basis of the report of
the enquiry officer, the Syndicate imposed punishment of compulsory retirement
on the respondent. Under the circumstances, it cannot be said that the Vice
Chancellor has delegated his function merely by deputing an independent
officer to enquire and submit a report. That is an ordinary mode of exercise
of any administrative power. When the enquiry officer is appointed, the
disciplinary authority does not lose its power, and therefore the question of
delegation of power would not arise in this case.
13. Mr. R.Gandhi, learned Senior Counsel appearing for the
respondent, however, urged that the Tamil Nadu Civil Service Classification (
Control and Appeal) Rules, in particular Rule 17(b) ought not to have been
applied inasmuch as Rule 17(b) deals with procedure to be followed for major
punishment only and the same ought not to have been followed since the
incident referred to in the charge memo warrants only a minor punishment.
Mr.R.Gandhi, submitted that the punishment imposed by the Syndicate is
excessive and disproportionate. We are unable to accede to the submission of
Mr.R.Gandhi. The charges pertain to an act of indiscipline especially by a
teacher, which is a serious charge. In paragraph 47 of the enquiry report,
the enquiry officer has observed thus: –
” 47. AO 1 is a senior member of the teaching faculty and having long
years of experience. It is not as if his acts of gross misconduct could be
attributed to lack of knowledge or lack of experience. On the contrary, his
various explanations have only confirmed that all his acts of misconduct were
deliberate and in open defiance of Authority and established norms of
discipline and this defiance is reflected even in his present explanation.
There are absolutely no mitigating circumstances. Clearly, he has no
intention of mending his ways. The punishment to be imposed on AO1, has to be
decided by the Syndicate.”
A perusal of the charges framed against the respondent shows that the action
of the respondent was clearly in breach of the relevant rules and regulations.
The respondent held demonstrations inside the campus of the University in
violation of the clear directions of the Syndicate. He along with his
colleagues gheraoed the Vice Chancellor and virtually compelled the Registrar
to issue promotion orders under extreme duress. We may also mention that in
the past, in the year 1984, the respondent had involved in the act of
indiscipline and was suspended and the order of suspension was confirmed by a
learned single Judge of this Court, though subsequently the enquiry was
dropped. Under the circumstances, it is not possible to hold that the charges
against the respondent were of minor in nature, and the punishment imposed is
harsh and excessive.
14. Mr.R.Gandhi next argued that the suspension ought to have been
approved by 2/3rd of the members of the Syndicate and the same has not been
done and consequently, the entire proceedings are vitiated. The submission
made by the counsel is not borne by record. This very submission was raised
by the respondent while challenging the suspension order and the order of
suspension, even though set aside by the learned single Judge, was confirmed
by a Division Bench which had upheld the order of suspension. The very point
was urged before the Division Bench and the Division Bench has rejected the
same and has held that with regard to interim suspension, Rule 5 would not
apply. It is not now open to the respondent to challenge the suspension as
the enquiry is completed and pursuant to the enquiry, the respondent has been
compulsorily retired by the competent authority. It is also required to be
noted that the final order of compulsory retirement was approved by 2/3rd of
the members of the Syndicate. Out of 22 members present in the Syndicate,
only two members viz. Mr.R.K.Balasubramanian and V.G.Shanmugam recorded their
dissent and all others supported the decision to impose the punishment of
compulsory retirement.
15. The learned single Judge while deciding the issue No.4 has
observed that the Senate is the Supreme Governing Body and it has got
jurisdiction to review the action of the Syndicate. The Senate has power to
review the action of the Syndicate or Academic Council only if they have acted
outside the powers conferred under the Act. When there is no violation of the
statutes in imposing the punishment and the report of the Enquiry Officer has
been duly considered and the punishment was imposed after giving a full
opportunity to the respondent, the question of exercise of power by the Senate
does not arise. In any event, the punishment was imposed after giving a full
opportunity of hearing and therefore, we do not find any substance in the
contention of the respondent that there was violation of the provisions of the
Act and the statutes framed by the University.
16. In view of the foregoing discussion, we are of the opinion that
the punishment of compulsory retirement imposed on the respondent by the
Syndicate is legal and valid. Consequently, the impugned order of the learned
single Judge is set aside. The writ petition is dismissed, and the writ
appeal is allowed. No order as to costs. W.A.M.P.Nos. 6101 of 2002 and 719
of 2006 are closed.
Vu/pv