CW/9609/2008 of DR. RAJEEV KUMAR GUPTA Vs JAI NARAYAN VYAS UNIVERSITY, JOD. andANR on 22 December 2008

O R D E R

Dr.Rajeev Kumar J.N.V.University, JodhpurGupta v. and another S.B.CIVIL WRIT PETITION NO.9609/2008under Articles 226 and 227 of theConstitution of India.

Date of Order

:: 22[nd] December, 2008

P R E S E N T

HON'BLE MR.JUSTICE GOVIND MATHUR

Mr. S.D.Purohit, for the petitioner.Mr. P.R.Singh, for the caveator.

....

BY THE COURT:

In exercise of the powers conferred underSection 12(5) of the Jai Narain Vyas University Act,1962 (hereinafter referred to as “the Act of 1962”),by an order dated 26.11.2008, the Vice Chancellor ofthe Jai Narain Vyas University (hereinafter referredto as “the University”) suspended the petitioner, anAssociate Professor in the Department of Zoology withimmediate effect for persistent negligence and scantregard. To quash the order aforesaid a writ, order ordirection is sought through this petition for writ.

As per the petitioner no such emergencyexisted that may warrant exercise of powers by theVice Chancellor under Section 12(5) of the Act of 1962to place him under suspension. It is asserted that thesuspension impugned is not bonafide but for collateralground to frustrate the order dated 19.1.2006 passedby this Court in SBCivil Writ Petition No.137/2006.

The petitioner was appointed as Head of theZoology Department with the University on 1.9.2005 andby an order dated 3.1.2006 he was replaced by Dr.S.P.Singh as Head of the Department. To challenge theorder dated 3.1.2006 he preferred a petition for writ(SBCivil Writ Petition No.137/2006) before this Courtwherein by an interim order operation and effect ofthe order dated 3.1.2006 was stayed. The interimdirection given by the Court was not complied with,therefore, the petitioner preferred a contemptpetition and then only on 3.5.2006 compliance of theorder passed by this Court was made by reappointingthe petitioner as Head of the Department. According tothe petitioner the order of suspension is an out comeof the ill-will against him and for extraneousconsiderations.

On behalf of the University a caveat islodged to oppose admission of the writ petition andany interim direction on the stay application. Adetailed reply to the writ petition has been filed on behalf of the University justifying the order dated26.11.2008. According to the caveator respondent thepetitioner by various means is creating hindrance insmooth administration of the University and as suchcommitted grave misconduct and that warranted hissuspension. The allegation of malafides and extraneousconsiderations is empathetically denied and it is saidthat the petitioner was removed from the office of theHead of the Department prior to joining the office bythe present Vice Chancellor and as such he is not atall concerned with the order removing the petitionerfrom the Headship. The respondents have also placed onrecord certain facts warranting exercise of powersunder Section 12(5) of the Act of 1962 to place thepetitioner under suspension. It is also said that asper ordinance 320 of the Jai Narain Vyas UniversityOrdinance the competence for placing the petitionerunder suspension rests with the syndicate, however,due to currency of the code of conduct for RajasthanState Legislative Assembly Elections, it was notpossible to hold the meeting of syndicate and,therefore, the Vice Chancellor left with no option butto exercise the emergency powers given under Section12(5) of the Act of 1962.

Heard counsel for the parties.

The petitioner is holding the post ofAssistant Professor and as per ordinance 320 of the

Jai Narain Vyas University Ordinance it is thesyndicate, entitled to suspend him on grounds of gravemisconduct and/or persistent negligence of duty.However, due to the inability to convene meeting ofthe syndicate immediately, the Vice Chancellor invokedemergency powers prescribed under Section 12(5) of theAct of 1962. Section 12(5) of the Act of 1962 reads asfollows:- “(5)In any emergency, when, in the opinion ofthe Vice-Chancellor immediate action isrequired, the Vice-Chancellor shall take suchaction as he may deem necessary and shall atthe earliest opportunity report the actiontaken to the officer, authority, or body whoor which in the ordinary course would havedealt with the matter, but nothing in thissub-section shall be deemed to empower theVice-Chancellor to incur any expenditure notduly authorised and provided for in thebudget.”

As per sub-section(8) of Section 12 of theAct of 1962 the Vice Chancellor is also having powerswithout prejudice to the provisions under sub-section(2) of Section 10 to make an inquiry himself or tocause it to be made by any officer directed by himagainst a teacher.

Precisely, the question requires adjudicationin the instant matter is that whether any genuine emergency was existing to exercise extraordinaryemergent powers?

As per counsel for the petitioner there wasno emergency so as to invoke Section 12(5) of the Actby the Vice Chancellor. The Vice Chancellor could haveinquired all the issues relating to the petitioner byplacing the same before the syndicate. It isemphasised that not a single allegation against thepetitioner was causing any hindrance in administrationof the University. A reliance is also placed bycounsel for the petitioner upon a Division Benchjudgment of this Court in the case of Mrs. PritiPrabha v. Dr. C.P. Singh & Ors., reported in 18 Raj.ILR 712. In the case aforesaid it was held that if itis shown that the circumstances for emergency did notexist or that the circumstances were such that it wasimpossible for any one to form an opinion therefromsuggestive of the existence of emergency, the opinionis challengeable on the ground of non-application ofmind or perversity or on the ground that it was formedon collateral ground and was beyond the scope ofStatute. The provisions contained under Section 12(5)are not designed to enable the Vice Chancellor to actas a substitute for various statutory bodies of theUniversity. I am having no doubt about the prepositionadvanced by learned counsel, as it is well settledthat the emergency powers conferred on the ViceChancellor should be exercised with restraint and only in such emergency situation where the authorityordinarily empowered to exercise such powers isunlikely to meet in the near future and deferring adecision for consideration of the appropriate body islikely to create serious administrative inconvenience.Routine matter like creation of teaching and academicposts, appointment on the said posts finalisingrecruitment procedure, promotions under CareerAdvancement Scheme, upgradation of posts may not bethe issues where emergency powers should be exercised,however, the issue relating to discipline requiresimmediate consideration and in the instant matter forvarious obvious reasons the Vice Chancellor rightlyreached at the conclusion that the meeting of thesyndicate of the University was unlikely.

To get the circumstances in which the ViceChancellor exercised emergency powers examined,counsel for the respondent University has shown notesand orders made during the process that resulted intothe order of suspension. All the notes on basis ofwhich the Vice Chancellor formed an opinion toexercise powers under Section 12(5) of the Act of 1962are quoted below:-

“Prior to 26[th]November, 2008, manycomplaints about working of Dr. Rajeev KumarGupta have been received by this Office,which are available in the office record.

Further, Dr. Gupta persistently not complyingwith the orders of the authorities of theUniversity including the Hon'ble Vice-Chancellor like, he did not attend themeeting on 23[rd] Sept., 2008 inspite ofimportant issues related to the department ofZoology were under consideration. (Report ofthe Committee produced herewith)

On 16[th]Oct., 2008 Dr. Gupta, Head,Department of Zoology was asked by theHon'ble Vice-Chancellor personally to meet inthe office of the Hon'ble Vice-Chancellorimmediately after meeting of the AcademicCouncil to discuss the problem of admissionin the Department, but he did not turn up tothe office of the Hon'ble Vice-Chancellor anddeliberately left the Central Officeimmediately after the meeting. (Note-Sheet isenclosed along with the present note-sheet)

Dr. Rajeev Kumar Gupta was also requested tomeet the Hon'ble Vice-Chancellor on 26[th]Nov., 2008 at 1:00 p.m. and even afterrepeated requests, he did not turn up to theoffice of the Hon'ble Vice-Chancellor anddeliberately dis-obeyed the direction of theHon'ble Vice-Chancellor. (report from ParaNo. 1 to 6 is produced herewith)

In pursuance to the above cited persistentnegligence and showing scant regard, theHon'ble Vice-Chancellor can initiate actionagainst Dr. Rajeev Kumar Gupta underSchedule-II of Appendix-B of Ordinance 320.The procedure for initiating disciplinaryaction against an y teacher, who committedsaid offence, has prescribed in the Ordinance 320 of the University Act. The relevant partor Ordinance 320 is as under:

The Syndicate shall be entitled to suspendand/or determine the engagement of theteacher on grounds of grave misconduct and /or persistent negligence of duty, in themanner hereinafter provided. (Handbook willbe placed on Table for perusal of Ordinance320)

The power to terminate or suspend to ateacher is vested upon the Syndicate. In casein any emergency, when, in the opinion of theVice-Chancellor,immediateactionisrequired, the Vice-Chancellor shall take suchaction as he may deem necessary and shall atthe earlier opportunity report the actiontaken to the officer, authority, or body whoor which in the ordinary course would havedealt with the matter, under Section 12 (5)of the JNV University Act, 1962.

Since, immediate convening of the Syndicatemeeting is not possible, so the Hon'ble Vice-Chancellor may deal this matter under Section12(5) and Section 12(8) of the JNVUniversity, Act 1962.

Submitted for necessary orders.”

The opinion formed by the Vice-Chancellor onbasis of the notings aforesaid reads as follows:- “Paras 7 to 14 have been considered and I amof the opinion that the working of Dr. RajeevKumar Gupta is undignified and is persistent

negligence and showing scant regard andimmediate action is needed and the power totake action against a teacher is providedunder the Ordinance 320-B where Syndicate isempowered to take action to suspend a teacheron the ground of grave misconduct andpersistent negligence of duty in the mannerhereinafter provided. But since the callingof immediate Syndicate meeting is notpossible, so the powers provided underSection 12(5) and 12(8) of the Act of 1962, Iorder to suspend Dr. Rajeev Kumar Gupta withimmediate effect on the ground of persistentnegligence of duty and showing scant regard.Further a committee is constituted underSection 12(8) to inquire and prepare completeCharge-sheet cause an enquiry by following:

1. Prof. L.C. BhandariConvener Dean, Faculty of Commerce Management Study.

2. Prof. S.S. SharmaMember Ex-Dean, Faculty of Law

3. Prof. A.K. MalikMember Department of Psychology”

From reading of the notes and the opiniondrawn by the Vice Chancellor, it is apparent that theVice Chancellor considered all existing circumstancesobjectively and looking to the fact that the meetingof the syndicate in immediate future was unlikely, hedecided to invoke emergency powers. The ViceChancellor considered all the facts available anddecided for taking an immediate step to maintaindiscipline. The discretion exercised by him is notill-founded or perverse. This Court while discharging powers in its extraordinary jurisdiction is notsuppose to interfere with day to day administrativefunctions of an autonomous body like the respondentUniversity. The powers under Article 226 of theConstitution of India are meant for removing wrongsexisting due to violation of statute and to protectfundamental and statutory rights but not to checkobjective discretion of a competent authority. In theinstant matter I do not find any material available onrecord to substantiate the allegation of the use ofemergent power for collateral grounds. However,looking to the fact that the Vice Chancellor hasexercised emergent powers and that is required to beplaced before the syndicate as soon as possible, itshall be appropriate to direct the University toconvene the meeting of syndicate within a period often days from today to report the action taken by theVice Chancellor to it.

Accordingly, the petition for writ isdismissed with a direction to the respondents toreport the action in question to the syndicate of theUniversity on or before 2[nd] January, 2009.