WP/27040/1998 of ABDUR RAHIM Vs REGISTRAR. OU HYD AND 2 OTHERS on 30 December 2008

-JUDGMENT:

A writ of Certiorari is sought to quash order dated11-2-1998 passed by respondent No.2 accordingsanction for reduction in the rank of the petitioner fromprofessor to that of reader.FACTS:

The petitioner was appointed as lecturer in theDepartment of Communication and Journalism inrespondent No.1-Osmania University (for short “theUniversity”) on 3-10-1972. He was promoted as reader on 13-1-1984 and as professor on 1-1-1993. Thepetitioner was Head of the Department ofCommunication & Journalism from February, 1993 toAugust, 1995.

Entrance test for admission into the course ofBachelor of Communication & Journalism (BCJ) washeld on 24-6-1995. Apart from the course in English, 30seats each were sanctioned for the two regionallanguages viz., Telugu and Urdu Journalism. Theanswer scripts, numbering 1347, were sent to theDepartment of Communication and Journalism headedby the petitioner. The petitioner, as Head of theDepartment, was entrusted with the responsibility to getthe evaluation completed by a team of valuers. Inconnection with the said evaluation, adverse reportsagainst the petitioner appeared in the newspapers. Inthe said reports, the petitioner was accused oftampering with the answer scripts of Urdu mediumstudents by awarding higher marks to make sure thatsome of his favoured candidates secure seats in theBCJ course.

Following the said news reports, respondent No.3got a preliminary enquiry held into the affairs by Prof.K.Madhusudhan Reddy. The preliminary enquiry officertook over all the answer scripts from the petitioner on 7-7-1995. After considering the preliminary enquiry report,

the University sent the answer scripts to forensic expertand on considering the report of the forensic expert, theExecutive Council in its meeting held on 7-11-1995authorized respondent No.3 to appoint an enquiryofficer to enquire into the circumstances leading to thecancellation of BCJ entrance test conducted on 24-6-1995 and initiate disciplinary action against the personsresponsible. Accordingly, respondent No.3 appointedSri T.V.Narayana, as enquiry officer. Questioning thesaid action, the petitioner filed Writ Petition No.13347 of1996 in this Court. The matter ultimately reached theDivision Bench in Writ Appeal No.859 of 1996, whichwas disposed of on 5-8-1996 with the direction to theUniversity to appoint a High Court Judge in service orretired or any person qualified to be a High Court Judgeor an eminent Educationist or senior IAS officer or theVice-Chancellor to hold the enquiry. Accordingly, theExecutive Council in its meeting held on 1-10-1996resolved to appoint a High Court Judge as an enquiryofficer and authorized respondent No.3 to name theHigh Court Judge. Respondent No.3, thereupon,appointed Justice M.Ranga Reddy, former Judge of thisCourt as enquiry officer under Rule 7(b) of the OsmaniaUniversity Service (Disciplinary and Appeal) Rules,1990 (for short “the Rules”) to conduct the departmentalenquiry against the petitioner. This decision was communicated by the Registrar of the University byorder dated 4-11-1996.

The enquiry officer framed three charges, which are as follows:

“Charge-1: That you, having received answer-scriptsof BCJ Entrance Examination, 1995, in your capacityas Head of the Dept. of Communications &Journalism on 25-6-1995 for purpose of evaluationtampered with the answer-scripts by writingsomething, striking off the wrong markings given inrespect of objective type of questions and tickingright answers with dishonest intention of helpingcertain candidates of Urdu medium, which conduct ofyours, if established, or proved, would amount tomisconduct.

Charge-2: That you, deliberately and dishonestlyselected Dr.Baig Ehsas, Reader in Urdu, whosequalification, to evaluate the answers involving socialscience background, is doubtful and thereby deviatedfrom the normal procedure adopted for valuing thescripts with the idea that you would agree with thevaluation as made by you.

Charge-3: That you, valued the answers to questionNos.7, 8 and 9 written in English as well as Urdu bythe candidates who have chosen Urdu as theirmedium and took into consideration the higher marksobtained by such candidates that such option is notgiven to them with a view to help the candidates ofUrdu medium”.

As many as 13 witnesses were examined asPWs.1 to 13 and 22 documents were marked asExs.A.1 to A.22 on behalf of the University. No oralevidence was adduced on behalf of the petitioner butExs.D.1 to D.3 were marked on his side. The enquiry

officer submitted his report dated 3-7-1997. In his report,while finding the petitioner guilty of all the three charges,the enquiry officer opined that it is undesirable tocontinue the petitioner as Head of the Department orentrust him with any valuation work in future, apart fromrecommending for stoppage of three increments withcumulative effect. The said report was considered bythe Executive Council in its 19[th] meeting held on 21-7-1997 and resolved that the punishment suggested bythe enquiry officer is inadequate in view of his findingthat the petitioner is guilty of all the three charges. Whiledeciding to remove the petitioner from service, a showcause notice was issued by the University by memodated 27-8-1997, enclosing a copy of the enquiryreport. The petitioner submitted his explanation, whichwas considered by the Executive Council in its 23[rd]meeting held on 22-11-1997 and reconsidered itsearlier view on humanitarian grounds. It, accordingly,resolved to demote the petitioner as reader and not toassign him any confidential and administrative work fora period of five years. Accordingly, the petitioner wasdemoted as reader, which action is questioned in thisWrit Petition.

-CONTENTIONS:

Sri Vedula Venkata Ramana, learned counsel for the petitioner advanced the following contentions:

1) The Executive Council, being the disciplinaryauthority, alone is empowered to appoint anenquiry officer and that appointment of enquiryofficer by respondent No.3-Vice-Chancellor iswithout jurisdiction.authority, alone is empowered to appoint anenquiry officer and that appointment of enquiryofficer by respondent No.3-Vice-Chancellor iswithout jurisdiction.

2) Respondent No.3, to whom the power ofExecutive Council to appoint an enquiry officerwas purportedly delegated, did not follow theprocedure stipulated by the latter, subject to whichthe power was delegated, as he failed to get anenquiry held before appointing enquiry officer tohold enquiry against the petitioner.Executive Council to appoint an enquiry officerwas purportedly delegated, did not follow theprocedure stipulated by the latter, subject to whichthe power was delegated, as he failed to get anenquiry held before appointing enquiry officer tohold enquiry against the petitioner.

3) The charges framed by the enquiry officer andholding of enquiry on such charges cannot besustained because it is the disciplinary authority,which is empowered to frame the charges, andappoint an enquiry officer only if it is not satisfiedwith the explanation submitted by the delinquent.Therefore, the entire enquiry proceedings and theorder passed on such proceedings are vitiated byserious procedural illegality.holding of enquiry on such charges cannot besustained because it is the disciplinary authority,which is empowered to frame the charges, andappoint an enquiry officer only if it is not satisfiedwith the explanation submitted by the delinquent.Therefore, the entire enquiry proceedings and theorder passed on such proceedings are vitiated byserious procedural illegality.

4) The explanation submitted by the petitioner to thecharges was not considered by the disciplinaryauthority and that if the disciplinary authorityapplied its mind to and considered theexplanation of the petitioner, there would havebeen a possibility of it’s dropping the further actionagainst the petitioner.charges was not considered by the disciplinaryauthority and that if the disciplinary authorityapplied its mind to and considered theexplanation of the petitioner, there would havebeen a possibility of it’s dropping the further actionagainst the petitioner.

5) The charges framed by the enquiry officer do notconstitute ‘misconduct’ as the acts complained ofagainst the petitioner have no connection with hisduties as Professor and that in the absence ofany enumerated categories of misconduct in theRules, an ex post facto misconduct cannot beconstitute ‘misconduct’ as the acts complained ofagainst the petitioner have no connection with hisduties as Professor and that in the absence ofany enumerated categories of misconduct in theRules, an ex post facto misconduct cannot be added to the list of misconducts.

6) The findings of the enquiry officer are not basedon legal evidence; andon legal evidence; and

7) The Executive Council, while passing the orderimposing punishment, did not consider theexplanation submitted by the petitioner to theshow-cause notice and, therefore, the impugnedorder is vitiated by non-application of mind.imposing punishment, did not consider theexplanation submitted by the petitioner to theshow-cause notice and, therefore, the impugnedorder is vitiated by non-application of mind.

Opposing the contentions of the learned counselfor the petitioner, Sri Deepak Bhattacharjee, learnedstanding counsel for the University appearing for therespondents, submitted that the Executive Council,which is the disciplinary authority, delegated its power torespondent No.3 under Section 19(25) of the A.P.Universities Act, 1991 (for short “the Act”). He also reliedon Section 13(8)(a),under which emergency powersare conferred on the Vice-Chancellor for takingimmediate action subject to the control of the Chancellorand reporting the action taken to the officer or authorityconcerned. He further submitted that the Rules do notenvisage framing of charges by the disciplinaryauthority and in the absence of such a requirement, theenquiry officer is competent to frame charges. Insupport of this contention, he relied upon the judgmentof the Supreme Court in Inspector General of Police .Vs. Thavasiappan[[1]] He also relied upon thejudgments of the Supreme Court in P.V.Srinivasa Sastry Vs. Comptroller & Auditor General[[2]], Transport Commissioner, Madras Vs. A.RadhaKrishna Moorthy[[3]],Registrar, Co-operativeSocieties Vs. F.X.Fernando[[4]], Government of TamilNadu Vs. S.Velraj[[5]]and the five Judges Benchjudgment of this Courti n K.Swarna Kumari Vs.

Government of Andhra Pradesh[[6]]in support of hiscontention that an authority subordinate to thedisciplinary authority is also competent to initiatedisciplinary action. He also submitted that as the headof the department, the petitioner was entrusted with theresponsibility of evaluation of the answer scripts and inview of the established fact that the answer scripts werefound tampered, which constitutes serious misconducton the part of the petitioner in discharge of official dutiesentrusted to him, it cannot be said that the petitioner isnot guilty of any misconduct. He denied the contentionthat the findings are not based on legal evidence andreferred to the report of the enquiry officer, whodiscussed the oral evidence of the witnesses and thedocumentary evidence adduced by the parties. Hesubmitted that the Executive Council, after a detailedconsideration of the explanation of the petitioner andthe entire record, passed the impugned order.

-ANALYSIS:

I shall now refer to the contentions advanced bythe learned counsel for the petitioner.

The Executive Council of the University, inexercise of its powers under the provisions of theOsmania University Act, 1959 issued Ordinance witheffect from 5-11-1990 and framed the Rules.

Under Rule 2 it is provided that the Rules shallapply to all employees of the University (other thanthose employed only occasionally or subject todischarge at less than one month’s notice or thoseborne on the contingent and work chargedestablishments) etc.

Under Rule 3 several penalties were prescribed,which include reduction to a lower rank in the senioritylist or to a lower post of a lower stage in the time scale.

Under Rule 5(a) the appointing authority or higherauthority is empowered to impose any of the penaltiesprescribed in Rule 3, subject to the authorities specifiedin the Appendix to the Rules.

Under Rule 7(a) no employee of the Universityshall be dismissed or removed or compulsorily retired orreduced in rank except after an enquiry in which he has been informed of the charges against him and given areasonable opportunity of being heard in respect ofthese charges. This Rule further provides that where itis proposed after such enquiry to impose upon him anysuch penalty, such a penalty shall not be imposedunless the employee has been given a reasonableopportunity of making a representation on the penaltyproposed and such penalty shall be based on theevidence adduced during the enquiry.

Under Rule 7(b) the enquiry shall be made by theenquiry officer, who shall be appointed by the ExecutiveCouncil in the cases of University Employees of Class I

and II status, among the following categories:

1) a High Court Judge, in service or retired orany person qualified to be a High CourtJudge; orany person qualified to be a High CourtJudge; or

2) an eminent educationist; or

3) a senior IAS officer or any retired IAS officeror any person who is well versed inadministrative matters.or any person who is well versed inadministrative matters.

Appendix to the Rules, inter alia, contains“instructions under Rule 7(a) for the guidance of enquiryofficer” (for convenience it is referred to as “Heading toAppendix”). Under Clause (1) it is provided that where itis proposed to impose on an employee any of thepenalties specified in items (iv), (vii) and (viii) of Rule 3,the grounds on which it is proposed to take action shall

be reduced to the form of a definite charge or chargeswhich shall be communicated to the person charged,together with a statement of allegations on which eachcharge is based and of any other circumstances whichit is proposed to take into consideration in passingorders in the case. It further provides that the employeeshall be required within such reasonable time as maybe specified by the enquiring officer to put in a writtenstatement of his defence and to state whether hedesires an oral enquiry or only to be heard in person. Under Clause (3), if within the prescribed time or suchtime as the charging authority may give, no writtenstatement in defence is filed and no request in writing ismade for an oral enquiry or for being heard in person,the authority conducting the enquiry may proceed torecord the findings without holding any further enquiry.Clause (4) inter alia provides that an oral enquiry shallbe held if such enquiry is desired by the personcharged.

The Act repealed, among other Acts, the OsmaniaUniversity Act, 1959 and the University is includedwithin the provisions of this Act. Section 19 of the Actenumerated the powers and duties of the ExecutiveCouncil. These powers include the power to delegateany of its powers to the Vice-Chancellor or to acommittee from among its own members or to any employee of University under Clause (25) of the saidprovision. Admittedly, the Executive Council was thedisciplinary authority for the petitioner.

As referred to earlier, by its resolution passed on7-11-1995, the Executive Council authorizedrespondent No.3 to appoint an enquiry officer to enquireinto the circumstances leading to the cancellation ofBCJ Entrance Test and initiate disciplinary actionagainst the persons responsible. Therefore, theExecutive Council exercised its power of delegationconferred by Section 19(25) of the Act in favour ofrespondent No.3. A careful perusal of the saidresolution contained in the record produced by therespondents shows that the scope of power delegatedis very wide, which takes within its fold the power toinitiate disciplinary action against the personsresponsible. Accordingly, respondent No.3 initiallyappointed Sri T.V.Narayana as enquiry officer, whichwas questioned in Writ Petition No.13347 of 1996 andin Writ Appeal No.859 of 1996, a Division Bench of thisCourt directed the University to appoint a High CourtJudge in service or retired or any other person inaccordance with the Rules. Indeed, as already notedearlier, by its resolution dated 1-10-1996 the ExecutiveCouncil while resolving to appoint a High Court Judgeas enquiry officer, authorized respondent No.3 to name the Judge. From this fact it is evident that while inprinciple the disciplinary authority itself appointed theenquiry officer by designation, the function of namingthe enquiry officer is delegated to respondent No.3.Therefore, this act of delegation by the ExecutiveCouncil perfectly accords with the Scheme contained inSection 19(25) of the Act. Further, the record revealsthat the decision of respondent No.3 to appoint JusticeM.Ranga Reddy (former Judge of this Court) wascommunicated by the Registrar by his letter dated 4-11-1996. Therefore, I find no merit in this contention of thelearned counsel for the petitioner.

This contention of the learned counsel is basedon the language contained in the resolution dated 7-11-1995 passed by the Executive Council, delegating thepower of initiation of disciplinary action against thepetitioner to respondent No.3. To appreciate thiscontention of the learned counsel for the petitioner, it isnecessary to reproduce the said resolution passed bythe Executive Council, which is as under:

“ 41. BCJ Entrance Test, 1995 – Tampering of answerscripts – Allegations against Prof.Abdur Rahim, thethen Head of the Department – Conduct of Enquiry.

i)RESOLVED that the recommendations of

the P.G. Admission Committee in cancelingthe BCJ Entrance Test, 1995 conducted on24-6-1995 and to reconduct the same on 3-9-1995, be approved.

ii)

FURTHER RESOLVED that the Vice-Chancellor be authorized to appoint anEnquiry Officer to enquire into thecircumstances leading to the cancellation ofthe BCJ Entrance Test conducted on 24-6-1995 and initiate disciplinary action againstthe persons responsible in the light of thereport of the Enquiry Officer.

iii)ALSO RESOLVED that Prof.Abdur Rahim, whose term as Chairman, Board of Studieshas expired be replaced immediately”.

The learned counsel submitted that even if the power of delegation is made in respect of respondent No.3, itwas subject to fulfillment of the condition that the lattershould appoint an enquiry officer and initiate disciplinaryaction against the persons responsible in the light of thereport of the enquiry officer. It is significant to note thateven by the time of passing of the said resolution,respondent No.3 got conducted a preliminary enquiryby Prof. K.Madhusudhan Reddy. The opening part ofthe Minutes extracted above specifically refers to theallegations made against the petitioner with regard tothe tampering of answer scripts and the need toconduct an enquiry. Though the power of holding anenquiry was delegated to respondent No.3 in order to identify the persons responsible for tampering of answerscripts and initiate disciplinary action against the saidpersons, the petitioner was already identified by Prof.K.Madhusudhan Reddy, who held a preliminaryenquiry. Therefore, no further preliminary enquiry was atall needed for initiating formal disciplinary proceedingsagainst the petitioner, as contended by the learnedcounsel for the petitioner. At any rate, the need forholding a further preliminary enquiry was evidently notraised by the petitioner in Writ Petition No.13347 of1996 and in Writ Appeal No.859 of 1996. With the orderpassed in Writ Appeal No.859 of 1996 on 5-8-1996 bythe Division Bench directing the University to appoint aHigh Court Judge or a retired High Court Judge or anyother officer in accordance with the Rules, all theobjections which the petitioner had in the matter ofholding enquiry are deemed to have been waived asthe petitioner not only allowed the order in the WritAppeal to become final but also submitted himself to thejurisdiction of the enquiry officer by participating in theenquiry. It is, therefore, not permissible for the petitionerto raise a plea, such as the present one, after theenquiry is concluded and order passed. This contentionis, therefore, rejected.

--RECONTENTION Nos. 3 AND 4:

These two contentions, being inter related, are considered together.

Rule-7, which envisages holding of enquiry, doesnot specifically name the authority which should framethe charges. But, Appendix to the Rules, to which areference is made earlier, contains the key inunderstanding the Scheme governing the procedure.The very Heading to Appendix itself suggests that it isthe enquiry officer, who is to frame the charges. Clause

(1) along with the Heading is reproduced hereunder:

“INSTRUCTIONS UNDER RULE 7(A) FOR THEGUIDANCE OF ENQUIRY OFFICER:

(1) Where it proposed to impose on an employee anyof the penalties specified in items (iv), (vii) and (viii)of Rule 3, the grounds on which it is proposed to takeaction shall be reduced to the form of a definitecharge or charges which shall be communicated tothe person charged, together with a statement ofallegations on which each charge is based and of anyother circumstances which it is proposed to take intoconsideration in passing orders in the case. He shallbe required within such reasonable time as may bespecified (by the inquiring authority) to put in a writtenstatement of his defence and to state whether hedesires an oral enquiry or only to be heard in person”.

A conjoint reading of the Heading to Appendix andClause (1) leaves one in no doubt that the function offraming charges is left to the enquiry officer. Though thelearned counsel made a reference to the twophraseologies contained in Clause (3) viz., “chargingauthority” and “the authority conducting the enquiry” inthe context in which these two expressions are used, it should be understood that they are referable only to theenquiry officer, because it is he who is authorized toframe charges and not the disciplinary authority. I am,therefore, of the definite view that the Rules authorizedthe enquiry to frame the charges.

In Inspector General of Police (1 supra) theSupreme Court considered a similar situation where aDeputy Superintendent of Police, appointed as anenquiry officer, framed the charges, and served thesame on the delinquent officer. He then held enquiryand submitted his report to the Deputy InspectorGeneral of Police, who was competent to award thepenalty. The Supreme Court rejected a similarcontention advanced on behalf of the delinquent as theone raised in the case on hand and observed that theRules were silent as to the person who should framethe charges and hold the enquiry. The Supreme Courtobserved:

“Generally speaking, it is not necessary that thecharges should be framed by the authority competentto award the proposed penalty or that the enquiryshould be conducted by such authority. We do notfind anything in the rules which would induce us toread in Rule 3(b)(1) such a requirement. In ouropinion, the view taken by the Tribunal that in a casefalling under Rule 3(b) the charge memo should beissued by the disciplinary authority empowered toimpose the penalties referred to therein and if thecharge memo is issued by any lower authority thenonly that penalty can be imposed which that lowerauthority is competent to award, is clearly erroneous”.

The Supreme Court took note of its earlier judgments in

State of M.P. Vs. Shardul Singh-(1970) 1 SCC 108and P.V.Srinivasa Sastry (2 supra). In the firstmentioned case the Supreme Court held that Article311(1) does not in terms require that the authorityempowered under that provision to dismiss or removean official, should itself initiate or conduct the enquirypreceding the dismissal or removal of the officer or eventhat such enquiry should be held at his instance. It isfurther held that the only right guaranteed to a civilservant under that provision is that he shall not bedismissed or removed by an authority subordinate tothat by which he was appointed. In the latter case theSupreme Court, in the context of Article 311(1) held thatin the absence of a rule, any superior authority who canbe held to be the controlling authority can initiate adepartmental proceeding and that initiation of adepartmental proceeding per se does not visit theofficer concerned with any evil consequences.

Thus, these two contentions raised by the learnedcounsel for the petitioner do not stand the test of law asdeclared by the Supreme Court in the above-mentionedjudgments. In the absence of any specific requirementunder the Rules that the disciplinary authority alone should frame the charges, there is no basis for thecontention that the enquiry officer has no authority toframe the charges.

An identical contention was rejected by a fiveJudges Bench of this Court in K.Swarna Kumari (6supra). In that case, disciplinary proceedings wereinitiated against a Subordinate Judge by this Court onadministrative side. The District Judge, who wasappointed as enquiry officer, framed charges againstthe officer and held enquiry. The High Court, afterconsidering the enquiry report, recommended to theGovernment to impose the penalty of compulsoryretirement on the charged officer and the Government,accordingly, passed such an order. In the Writ Petitionfiled questioning the said order, the charged officerraised the contention that by the time the disciplinaryproceedings were initiated, the Andhra Pradesh CivilServices (Classification, Control and Appeal) Rules,1991 came into operation, under which the disciplinaryauthority itself has to frame charges and that initiation ofdisciplinary proceedings ignoring the said Rules andfollowing the procedure prescribed under the A.P.CivilServices (Classification, Control and Appeal) Rules,1963 vitiated the enquiry and disciplinary proceedings.A Division Bench, which heard the case initially referredit to a Full Bench comprising three Judges. On a reference made by the Full Bench, the case wasdecided by a Larger Bench comprising five Judges. TheLarger Bench, through two different but concurringopinions, repelled the challenge to the procedurefollowed in the conduct of disciplinary proceedings.

G.Raghuram,J in his opinion observed:

“Para 68. One of the grievances of the petitionerherein {vide ground (b)} is that it was not the HighCourt (the disciplinary authority) but the InquiryOfficer who had framed the charges and the additionalcharges. This procedure, according to the petitioner,is inconsistent with Rule 20(2) and (3) of the 1991Rules. According to the petitioner’s interpretation theprovisions of rule 20(2) and (3) require thedisciplinary authority itself to draw up the substanceof the imputations of misconduct or misbehaviour, intodefinite and distinct articles of charge.

69. A true and fair construction of rule 20(3) does notsupport the petitioner’s interpretation. Rule 20(3) ofthe 1991 Rules read with Rule 20(2) enables thedisciplinary authority or the cadre controlling authorityto draw up the articles of charge or cause to be drawnup. This clause (highlighted herein) of Rule 20(3)permits the disciplinary authority (the High Court)to direct the inquiring authority to draw up thearticles of charge. The resolution of the HighCourt vide its orders dated 19-11-1997 and 6-1-1998 constitute a decision of the High Courtcausing the inquiring authority to draw up thearticles of charge against the petitioner.As thisissue (of the interpretation of Rule 20) is one ofsubstance and the grievance of the petitioner in thisregard is of substantive violation of the statutoryRules, we consider it integral to the issues presentedfor reference to this Larger Bench and have thereforeconsidered it appropriate to interpret the provisions ofRule 20 to the above, limited extent”. (Emphasissupplied).

The case law discussed above clearlyestablishes that framing of charges by the enquiryofficer instead of the disciplinary authority does not perse invalidate the disciplinary proceedings.

The learned counsel for the petitioner relied onthe judgment of the Supreme Court in State Bank of Patiala Vs. S.K.Sharma[[7]]in support of his contentionthat in the case of a substantive provision, its non-compliance vitiates the proceedings without applyingthe test of prejudice. I have carefully considered thesaid judgment, wherein the Supreme Court held thatwhile a substantive provision has normally to becomplied with and the theory of substantial complianceor the test of prejudice would not be applicable in sucha case, in the case of violation of procedural provisions,which are generally conceived in the interest of theemployee, violation of any and every proceduralprovision cannot be said to automatically vitiate theenquiry held or order passed. The Supreme Court whileapplying the doctrine of prejudice held that exceptcases falling under “no notice”, “no opportunity” and “nohearing” categories, the complaint of violation ofprocedural provision should be examined from the pointof view of prejudice, viz., whether such violation hasprejudiced the delinquent officer/employee in defending himself properly and effectively. The Apex Court furtherheld that even among the procedural provisions, theremay be provisions of fundamental character whoseviolation is by itself proof of prejudice and that no furtherproof of prejudice is required.

I fail to see how the petitioner’s case falls in any ofthe situations explained by the Supreme Court in thesaid case, which vitiates the disciplinary proceedings.Admittedly, a full-fledged enquiry was got conducted byno less a person than a former Judge of this Court. Thepetitioner failed to show violation of any provision in theRules either of substantive or of procedural character.On the interpretation of the Rules as above, the enquiryofficer was authorized to frame charges and, therefore,there was no violation of any of the Rules.

The contention of the learned counsel for thepetitioner that if the disciplinary authority applied itsmind, framed charges and considered the petitioner’sexplanation, it would have been possible for it to dropfurther action is without any substance. As held by theSupreme Court in P.V.Srinivasa Sastry (2 supra)initiation of a departmental proceeding per se does notvisit the officer concerned with any evil consequences.Therefore, it hardly made any difference whether thedisciplinary authority had considered the petitioner’s explanation or not. At any rate, such a plea is notavailable to the petitioner after initiation of disciplinaryproceedings and passing of order, because thepetitioner was afforded full opportunity to establish hisinnocence in the disciplinary proceedings. These twocontentions are accordingly rejected.

The gravamen of the charges against thepetitioner is that having received the answer scripts ofBCJ Entrance Examination, 1995 in his capacity asHead of the Department of Communications andJournalism for the purpose of evaluation, he tamperedwith the answer scripts with the dishonest intention ofhelping certain candidates of Urdu medium. Thecumulative effect of all the three charges is construedas ‘misconduct’.

The learned counsel for the petitioner submittedthat even if the charges as framed were held proved,they do not constitute an enumerated misconduct andthat any and every act does not amount to misconductunless it is specifically prescribed in the ConductRegulations. It requires to be observed that neither ofthe counsel filed the Conduct Regulations of theUniversity. Therefore, it is not possible to hold whetherthe misconduct alleged against the petitioner is includedin any of the enumerated acts constituting the act of misconduct under the Conduct Rules/Regulations.

Be that as it may, in a catena of judgments, theIndian and English Courts considered as to what constitutes ‘misconduct’. In Pearce Vs. Foster[[8]]theQueen’s Bench Division held that if a servant conductshimself in a way inconsistent with the faithful dischargeof his duty in service, it is misconduct. In Laws Vs.

London Chronicle (Indicator Newspapers) Ltd.,[[9]]

the Court of Appeal held that a disregard of an essentialcondition of the contract of service may constitutemisconduct. The Stroud’s Judicial Dictionary described‘misconduct’ as “misconduct means, misconduct arisingfrom ill motive; acts of negligence, errors of judgment, orinnocent mistake, do not constitute such misconduct”.

I n S.Govinda Menon Vs. Union of India[[10]]the Supreme Court held that “the manner in which amember of the service discharged his quasi judicialfunction disclosing abuse of power was treated asconstituting misconduct for initiating disciplinaryproceedings”. In State of Pubjab Vs. Ram Singh, Ex.Constable[[11]]the Supreme Court while consideringthe scope and ambit of the expression ‘misconduct’ inRule 16.2(1) of Punjab Police Manual, 1934 referred toBlack’s Law Dictionary and P.Ramanatha Aiyar’s Law Lexicon, which are reproduced hereunder:

“Misconduct has been defined in Black’s LawDictionary, Sixth Edition at page 999 thus:

‘A transgression of some established anddefinite rule of action, a forbidden act, adereliction from duty, unlawful behaviour, willfulin character, improper or wrong behaviour, itssynonyms are misdemeanor, misdeed,misbehaviour, delinquency, impropriety,mismanagement, offense, but not negligence orcarelessness’.

Misconduct in office has been defined as:

‘Any unlawful behaviour by a public officer inrelation to the duties of his office, willful incharacter. Term embraces acts which theoffice holder had no right to perform, actsperformed improperly, and failure to act in theface of an affirmative duty to act’.

P.Ramanatha Aiyar’s Law Lexicon, Reprint Edition1987 at page 821 defines ‘misconduct’ thus:

‘The term misconduct implies a wrongfulintention, and not a mere error of judgment.Misconduct is not necessarily the same thingas conduct involving moral turpitude. The wordmisconduct is a relative term, and has to beconstrued with reference to the subject matterand the context wherein the term occurs,having regard to the scope of the Act or Statutewhich is being construed. Misconduct literallymeans wrong conduct or improper conduct. Inusual parlance, misconduct means atransgression of some established and definiterule of action, where no discretion is left,except what necessity may demand andcarelessness, negligence and unskilfulness aretransgressions of some established, butindefinite, rule of action, which some discretionis necessarily left to the actor. Misconduct is aviolation of definite law; carelessness or abuse of discretion under an indefinite law.Misconduct is a forbidden act; carelessness, aforbidden quality of an act, and is necessarilyindefinite. Misconduct in office may be definedas unlawful behaviour or neglect by a publicofficer, by which the rights of a party have beenaffected”.

After considering the said expression with reference tothe above reproduced meaning of the expressioncontained in the Law Dictionaries, the Supreme Courtheld:

“Thus it could be seen that the word‘misconduct’ though not capable of precisedefinition, on reflection receives its connotationfrom the context, the delinquency in itsperformance and its effect on the discipline andthe nature of the duty. It may involve mortalturpitude, it must be improper or wrongbehaviour; unlawful behaviour, willful incharacter; forbidden act, a transgression ofestablished and definite rule of action or codeof conduct but not mere error of judgment,carelessness or negligence in performance ofthe duty, the act complained of bears forbiddenquality or character. Its ambit has to beconstrued with reference to the subject matterand the context wherein the term occurs,regard being had to the scope of the statute andthe public purpose it seeks to serve. The policeservice is a disciplined service and it requiresto maintain strict discipline. Laxity in this behalferodes discipline in the service causing seriouseffect in the maintenance of law and order”.

The judicial opinion on the expression‘misconduct’ appearing in the case law referred toabove undoubtedly brings every act of an employee,

whose conduct is inconsistent with the faithful dischargeof his duties, who had ill-motive or who abused hispower, within the sweep of the said expression.Applying this settled legal position, if we examine theact with which the petitioner is charged and held provedviz., he tampered with the answer scripts with thedishonest intention of helping certain candidates ofUrdu medium, it certainly embraces all facets ofmisconduct as described hereinabove. Irrespective ofwhether such act is enumerated as ‘misconduct’ or notin the Conduct Rules, by any standard, the petitioner,who was holding the position of Professor, was notexpected to indulge in such a conduct.

The judgment in Union of India Vs. J.Ahmed[[12]],relied on by the learned counsel for the petitioner, is ofno help to the petitioner because in the said case theSupreme Court, having referred to the English case lawreferred to above and also its earlier judgments, heldthat lack of efficiency or attainment of highest standardsin discharge of duty attached to public office does notipso facto constitute misconduct, and that lapse inperformance of duty or error of judgment in evaluatingthe developing situation may be negligence indischarge of duty but would not constitute misconductunless the consequences directly attributable to negligence would be such as to be irreparable or theresultant damage would be so heavy that the degree ofculpability would be very high.

In the present case, as discussed above, the petitioner is not charged with negligence in discharge ofhis duty or lack of efficiency or attainment of higheststandards, but with bad motive by tampering with theanswer scripts. Therefore, this plea of the learnedcounsel for the petitioner is wholly meritless.

The submission of the learned counsel for thepetitioner that the petitioner has not committed thealleged misconduct in the course of his official duty canbe referred only to be rejected. In his own affidavit heaverred that after he was promoted as professor on 1-1-1993 in the department of Communication andJournalism, he was also entrusted with theresponsibility of being Head of the Department ofCommunication and Journalism from February 1993 toAugust 1995. In paragraph 4 he, inter alia, stated asunder:

“Evaluation of the 1347 answer scripts was to be doneby a team of valuers in less than a week. That alongwith me a number of persons valued the BCJ answerscripts.

Prof. P.L.V.RaoMs.Kavita Karan.Ms.Padmaja Shaw.Mr.V.Shyam Sunder.Mr.M.Srinath Reddy. All Faculty members of the Journalism Department, Osmania University.

Mr.K.Stevenson

Dr.Yadgir Reddy (Library ScienceDept)Dr.Vishwa Mohan -do- Dr.Baig Ehsas (Urdu Dept)Dr.Afzaluddin Ahmed -do- The University has not issued any otherinstructions or guidelines to the effect as to who couldbe appointed as evaluators. As Head of theDepartment, it was my responsibility to get theevaluation completed. After the evaluation processwas over, the answer scripts would have to be sent tothe examination branch where these answer scriptsare decoded and thereafter the result of the BCJEntrance Test would be notified”.

Thus, on the petitioner’s own admission it was hisresponsibility to get the valuation done and completedas Head of the Department. Therefore, I do not find anymerit in this plea of the learned counsel for the petitionerthat either evaluation of the answer scripts was not partof his official duty or that the petitioner was not entrustedwith the responsibility of evaluation of answer scripts.As admitted by the petitioner, he was indeed entrusted with such responsibility and he committed misconductin discharge of his official duty.

For the above mentioned reasons, this contentionof the learned counsel for the petitioner is rejected.-RECONTENTION No.6:

A perusal of the enquiry report shows that afterthe news item was published, respondent No.3 directedProfessor K.Madhusudhan Reddy to conduct enquiryand, accordingly, the latter conducted preliminaryenquiry, wherein he examined some witnesses andrecorded their statements, examined the answer scriptswhich were found to have been tampered on the basisof the preliminary report, the answer scripts wererevalued and 70 answer scripts, which were found tocontain discrepancies, were sent to the handwritingexpert of the Government. The handwriting expertopined that 52 answer scripts contain variance in handwriting and requested the University authorities to sendspecimen writing of the persons suspected forcomparison of the hand writing, but the authorities didnot send the admitted or specimen writing to thehandwriting expert. On the basis of the preliminaryenquiry, BCJ Entrance Examination 1995 wascancelled and a fresh examination was held. Afterconsidering the preliminary enquiry report and theopinion of the hand writing expert, respondent No.3

initiated disciplinary action. During enquiry 13 witnesseswere examined and Exs.A.1 to A.22 and Exs.D.1 to D.3were marked. The enquiry officer framed the following points:

“1. Whether the evidence on record establishes thatthe Charged Officer had tampered with any of theanswer scripts in Urdu medium with dishonestintention securing their admissions;

2. Whether the Charged Officer was justified inasking Dr.Baig Ehsas, Reader in Urdu for evaluatingsubjective type of questions for which knowledge ofpolitical science and social science and currentevents are necessary and whether his selection forevaluating the papers was made with any dishonestintention; and

3) Whether the evaluation of answers made in Englishin respect of questions 7, 8 and 9 by the candidatesor Urdu medium is proper and whether the candidateswho had chosen Urdu as their medium by noting it thesame on the answer scripts had the right of suchchoice”.

On consideration of the material on record, the enquiry officer gave his finding on Charge No.1 as under:

“The fact that the answer-scripts contained thewritings of more than one individual, is evident fromthe report of the hand-writing expert. The same hasnot been disputed by the Charged Officer at any stageof enquiry. He simply stated that he has not done itand that anybody to whom the answer-scripts weregiven for purpose of evaluation, might have done it. Itis the evident that the Charged Officer, 10 and 11alone have corrected the answer-scripts in Urdumedium. No suggestion was even made to thesewitnesses that they tampered with the answer-scripts.It is also clear from the evidence of PW.13 that theanswer-scripts were in exclusive custody of the

Charged Officer and they were taken out only forpurpose of correction and even such correctionwas made only in his presence. So, the tamperingas is found in some of the answer-scripts couldnot have been done without the knowledge of theCharged Officer even where it is made by someother person. The Charged Officer even went to theextent of stating that he does not know to write Urduproperly. It that is so, it cannot be said that he iscompetent to correct the answer-scripts written inUrdu and some of the questions, particularly, questionNos.7, 8 and 9 are intended to test the languagecapability of the students. I am of the opinion that theCharged Officer has gone to the extent of denying hiscapacity to write Urdu properly to improbablise theallegation of tampering of answer-scripts by himforgetting the fact that by doing so he would beadmitting that he is not competent to correct theanswer-scripts. So, I am of opinion that the statementof the Charged Officer that he does not know Urduproperly, is not correct. As he is the person who wasan exclusive possession of the answer-scripts, it isfor him to come out with such circumstances aswould have probablised others to tamper with theanswer-scripts. The perusal of some of the answer-scripts particularly those bearing Nos.1244, 1282,651, 930, 963 and 467 clearly show that there isdifference in handwriting, change of ink in respect ofthose scripts. I am able to see them with naked eyethe change of handwriting and change of ink. Inrespect of answer-scripts bearing code number 1078,I find that tickings made in respect of 5 bits in respectof Question No.4 were struck off and re-ticking wasmade and I find that all the 5 re-tickings were valuedand found to be correct. In respect of answer-scriptbearing code number 855, question No.4 is answeredwith different ink and some cancellations were made.The purpose for which tampering of answer-scripts ismade, is irrelevant and no evidence could be givenabout it. So, the objection that no witness hasattributed any dishonest intention to him in suchtampering is irrelevant” (Emphasis supplied).

On the above reasoning, the enquiry officer held thatthe allegation of tampering must be deemed to havebeen proved.

With regard to Charge No.2, the enquiry officerconsidered the fact that, during his examination asPW.10, Dr.Baig Ehsas, who was examined as PW.10,failed to elaborate on the point mentioned in the key“Rs.800 crores HRD Ministry” and concluded that thesaid person, who was only a Reader in UrduDepartment, did not have the proficiency in the subjectof social science, current affairs and socio-economicproblems required for evaluation of the answer scripts and, accordingly, he held that the petitioner erred inselecting PW.10 for correcting question No.1.

Similarly, under Charge No.3, he found withreference to the evidence that the petitioner got thecorrections made in respect of answers to questionNos.7, 8 and 9 written both in Urdu and English andtook the highest marks into consideration and in somecases answers given in English were simply struck off.The enquiry officer referred to the guidelines issued bythe Department, which require that the candidate shouldanswer the questions in their respective medium andthat the answers given in English part of the questionsby the candidates of Urdu medium ought not to havebeen taken into consideration and that even in that regard there was no uniformity in the evaluation.Accordingly, he found that the petitioner has not got theanswers evaluated correctly and found the petitionerguilty of Charge No.3.

On a careful consideration of the enquiry report inits entirety, I am of the considered view that the enquiryofficer has not only considered the evidence, both oraland documentary, adduced before him, but alsoanalyzed it in a careful manner in holding the petitionerguilty of the charges. The findings of the enquiry officerare thus based on legal evidence.

The scope of judicial review of the orders passedin the disciplinary proceedings, by this Court underArticle 226 of the Constitution of India is well delineated.This Court will not sit as a Court of appeal nor substituteits view with that of the domestic tribunal if such a viewtaken by it is a plausible one. While exercising thepower of judicial review, this Court will not re-appreciate the evidence and preponderance ofprobabilities, and not proof beyond reasonable doubt, issufficient to hold an employee guilty. The insufficiencyof evidence is not a ground for interference if there issome legal evidence available to support theconclusion of the domestic tribunal.(See: State of A.P.

Vs. Chitra Venkata Rao[[13]], K.L.Shinde Vs. State of Mysore[[14]], Jiwan Mal Kochar Vs. Union ofIndia[[15]], B.C.Chaturvedi Vs. Union of India[[16]],High Court of Judicature at Bombay Vs.Udaysingh[[17]], High Court of Judicature Vs.Shashikant S.Patil[[18]], Karnataka Bank Ltd. Vs.A.L.Mohan Rao[[19]]and South Bengal State Transport Corporation Vs. Sapan Kumar Mitra[[20]]).

For the above mentioned reasons, I do not findany reason to accept this contention and the same is,accordingly, rejected.

--RECONTENTION No.7:

After the enquiry report was submitted by theenquiry officer, the same was placed before theExecutive Council in its meeting held on 21-7-1997,wherein the Executive Council felt that while the findingsof the enquiry officer were correct, the punishmentsuggested by him was inadequate and does notcommensurate with the proven misconduct. It,accordingly, issued a show-cause notice calling uponthe petitioner to show cause why he should not beremoved from service. The petitioner submitted hisexplanation dated 27-9-1997. Thereafter the ExecutiveCouncil in its meeting held on 22-11-1997 reconsideredits earlier view and imposed a lesser punishment than

the one proposed deciding to demote him as readerinstead of removing him from service. These factsclearly suggest that the Executive Council duly appliedits mind to the explanation submitted by the petitionerand imposed a lesser punishment than what wasproposed. If the Executive Council has not applied itsmind to the explanation submitted by the petitioner, itwould have ordinarily imposed the punishment ofremoval as proposed by it in the show-cause notice.Therefore, I do not find any merit in the submission ofthe learned counsel that the Executive Council has notconsidered the explanation of the petitioner beforepassing the impugned order.

For all the reasons stated above, the Writ Petitionfails and is accordingly dismissed.

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C.V.NAGARJUNA REDDY,

J

Date:30-12-2008MNR

L.R. Copies to be marked.

[1])(1996) 2 SCC 145)(1996) 2 SCC 145

[2]) (1993) 1 SCC 419) (1993) 1 SCC 419

[3]) (1995) 1 SCC 332) (1995) 1 SCC 332

[4]) (1994) 2 SCC 746) (1994) 2 SCC 746

[5]) AIR 1997 SC 1900) AIR 1997 SC 1900

[6]) 2006 (2) ALT 289= 2006(2) ALD 585) 2006 (2) ALT 289= 2006(2) ALD 585

[7]) AIR 1996 SC 1669[8]) (1886) 17 QDB 536[9]) (1959) 1 WLR 698[10]) AIR 1967 SC 1274[11]) (1992) 4 SCC 54[12]) AIR 1979 SC 1022[13]) AIR 1975 SC 2151[14]) AIR 1976 SC 1080[15]) AIR 1983 SC 1102[16]) (1995) 6 SCC 750[17]) AIR 1997 SC 2286[18]) (2000) 1 SCC 416[19]) (2006) 1 SCC 63[20]) (2006) 2 SCC 584