PARIMAL TRIVEDI v. PRADIP PRAJAPATI

appeared, at the first hearing, after accepting advance service of the petition. The record does not reflect any order directing office to issue formal notice to the respondents and/or any order recording that the respondent No.1 waived service of notice. The order passed on 8.2.2012 recites that:- “Heard Mr.S.N.Shelat, learned Senior Counsel, with Mrs.V.D.Nanavati, learned advocate for the petitioners, Mr.Mitul Shelat with Mr.Vidhi J. Bhatt, learned advocate for respondent No.1 and Mr.Rakesh R. Patel, learned Assistant Government Pleader for respondent No.2. It is pointed out by the learned counsel for the respective parties that the matter was predominantly kept for final hearing. Hence, S.O. to 29.02.2012.”

4. At the time of hearing of the petition pursuant to the said order dated 8.2.2012, Mr. S.N.Shelat, learned Senior Counsel, appearing with Mrs. V.D.Nanavati, learned advocate, Mr. Shalin SCA/17244/2011 5 JUDGMENT Mehta, learned counsel appearing for the respondent No.1 and learned AGP for respondent Nos.2 and 3 have jointly submitted that it is understood by all concerned parties that with consent of the parties, the petition is to be heard for final decision.

4.1 Having regard to the issues and contentions raised by the contesting parties, it appears that the petition requires consideration. Hence, RULE. Ms. V.J.Bhatt, learned advocate, for respondent No.1 and learned AGP for the respondent Nos.2 and 3 have waived service of process of rule. As mentioned above, at the request of and with consent of the learned counsel for the contesting parties and also in view of the order dated 8.2.2012, the petition is heard for final decision.

5. The respondent No.1 has resisted the petition by filing reply affidavit dated 30.11.2011. The parties have declared that the pleadings are complete. It is, however, necessary to note that during hearing, the petitioners tendered on 26.4.2012, further affidavit and written submissions. Therefore, on 1.5.2012, the respondent No.1 also filed counter affidavit dated 1.5.2012 accompanied by written submissions of respondent No.1. The respondent No.1 appears to have also placed on record a copy of his communication dated 1.12.2011 asking the petitioner University to cancel the order of suspension, particularly in view of the provisions contained under Clause 18(b) of the Ordinance 172. The reply affidavit dated 30.11.2011 is opposed by the petitioners by filing affidavit dated 16.10.2011 and in turn, the respondent No.1 has filed affidavit dated 17.1.2012.

6. Rival Contentions:-

6.1 Mr. Shelat, learned Senior Counsel for the petitioners, has submitted that the impugned order is unsustainable in law. He submitted that the learned tribunal erred in not appreciating and SCA/17244/2011 6 JUDGMENT holding that the joint meeting of the Executive Council and Academic Council is permissible in light of the provisions under the Gujarat University Act, 1949 [hereinafter referred to as “the Act”] hence, it was legal and proper to convene joint meeting of the said councils. He also submitted that the learned tribunal also erred in not appreciating and holding that the delegation of Vice- Chancellor's power to a dean, i.e. respondent No.3 herein, was legal and also permissible under the provisions of the Act.

6.2 Mr. Shelat, learned Senior Counsel, for the petitioners also submitted that the order placing respondent No.1 under suspension is also legal as well as justified and in consonance with relevant and applicable provisions under the Act and the learned tribunal has erred in quashing the said order. He also contended that the learned tribunal has erred in referring to and relying upon two previous orders passed by the learned tribunal and the said two orders could not have been treated as precedent, more particularly when the said matters are under consideration by the High Court. He also submitted that the resolution dated 28.5.2011 records and reflects the view / opinion of the Executive Council and Academic Council.

6.3 Mr. Shelat, learned Senior Counsel, further submitted that the tribunal is not right in law in holding that the Resolution dated

28.5.2011 passed at the joint meeting of the Academic Council and Executive Council is not permissible in law and the tribunal is also not right in holding that there is no provision for joint meeting under the provisions of the Gujarat University Act.

6.4 Mr. Shelat, learned Senior Counsel, also submitted that Section 20 prescribes power and duties of the Executive Council, which include power to appoint academic, administrative and other staff of the University, fix their emolument and define their duties SCA/17244/2011 7 JUDGMENT and conditions of service and to take disciplinary action.”

6.5 It is further contended by the petitioner University that the order of suspension is neither an order of dismissal nor of removal from service, but it is a protective action taken by the university pending departmental inquiry and the employee under suspension continues in service subject to payment of suspension allowances.

6.6 Mr. Shelat, learned Senior Counsel, submitted that the Vice Chancellor acted within his authority in convening the joint meeting so as to acquaint the members of Academic Council and seek their views about the alleged delinquency of respondent No.1. The said action by the Vice Chancellor cannot be termed as unauthorized or in breach of any provisions of the Act and that if the recommendations of the Academic Council are required to be taken into account before taking any action, then, no fault can be found in convening the joint meeting of the Academic Council and Executive Council. The learned Tribunal has passed the order without considering that the respondent No.1 being professor at the department of the petitioner university, the Academic Council would be concerned when action is taken or sought to be taken against an Academic officer of the university, hence, the order is rendered unsustainable. Mr. Shelat, learned Senior Counsel, further contended that even otherwise, no prejudice is caused to the respondent on account of joint meeting of Academic Council and Executive Council. With reference to the observations and findings of the learned tribunal that there is no order of suspension, Mr. Shelat, learned Senior Counsel, submitted that the resolution dated 28.5.2011 has to be read in the context of convening meeting regarding alleged misconduct committed by the respondent No.1 because the resolution records that the respondent No.1 should be suspended and an inquiry committee should be appointed. It is contended that in view of the said SCA/17244/2011 8 JUDGMENT resolution, findings by the learned tribunal are erroneous and unjustified. He also contended that the resolution of Executive Council cannot be construed and interpreted as if it is a legislative measure. Mr. Shelat, learned Senior Counsel, has submitted that the provision under Ordinance 172(18)(b) does not apply to university teacher, hence, the reliance placed on said provision is misconceived. With reference to nomination of Dr. B.V.Patel, Mr. Shelat, learned Senior Counsel, submitted that said Shri Patel was not delegated the power of Executive Counsel, but since allegations were raised against Vice Chancellor and In-charge Registrar, the Executive Council considered it appropriate and necessary to nominate Shri B.V.Patel to assist the Inquiry Committee and to enter into communication on behalf of the Executive Council.

7. Per contra, Mr. Shalin Mehta, learned counsel, for respondent No.1 submitted that there is no provision in the Gujarat University Act, 1949 authorising a joint meeting of the Academic Council and the Executive Council for suspending a University teacher. He relied on the provision under Section 11(5) and 20(1)(xxix) which read thus:- “11(5) The Vice-Chancellor shall give effect to the orders of the 2[Executive Council] regarding the appointment, dismissal, suspension and punishment of the persons in the service of the University or teachers of the University or regarding the recognition or withdrawal of the recognition of any such teacher and shall exercise general control over the affairs of the University. He shall be responsible for the discipline of the University in accordance with this Act, the Statutes and Ordinances.

20. (1) Subject to such conditions as may be prescribed by or under the provisions of this Act, the Executive Council shall exercise the following powers and perform the following duties, namely :— (xxix) to appoint academic, administrative and other staff of the University, fix their emoluments, and define their duties and conditions of service and to take disciplinary action] against them;”

7.1 He further submitted that the power to suspend lies with the Executive Council but is to be exercised only upon the recommendation made by the Academic Council, however, in present case, the decision to suspend the respondent No.1 was SCA/17244/2011 9 JUDGMENT taken by the Academic Council and the Executive Council in a joint meeting. He also contended that it is only when the Academic Council recommends suspension that the role of the Executive Council comes into the picture and that therefore, the suspension cannot be recommended by a joint session of the Academic Council and the Executive Council. Mr. Mehta, learned counsel, claimed that in the joint meeting of the Academic Council and the Executive Council, the members of the Executive Council were able to influence the members of the Academic Council into recommending suspension of respondent No.1 which amounts to breach of section 11(5) read with section 20(1)(xxix) and (3) of the Act. He also claimed that the said course of action caused serious prejudice to respondent No.1 because in all probability members of the Academic Council would not have recommended measure of suspension. Mr. Mehta, learned counsel for the respondent No.1 contended that the resolution dated 28.5.2011 passed in the joint meeting of Academic Council and the Executive Council did not resolve to suspend respondent No.1 and that it merely resolved to constitute a fact finding committee of three persons. The fact finding committee gave its report only on 15.6.2011 and therefore, respondent No.1 could not have been suspended pending such report. Mr. Mehta further submitted that the respondent No.1 was suspended w.e.f. 31.5.2011 on a complete misreading, misinterpretation and misconstruction of the resolution dated

28.5.2011. He also contended that the resolution passed in the meeting of 11.12.2011 by the Executive Council resolving to continue the respondent under suspension amounts to contempt. Without prejudice to the said contention, Mr. Mehta further contended that the action of continuing the respondent No.1 under suspension beyond six months of 31.5.2011 is contrary to Ordinance 172, clause 18(b), which reads as under - Suspension: “18. (b) (i) During the first three months of the period of suspension, the suspended teacher shall be entitled to receive 50% of the basic salary plus SCA/17244/2011 10 JUDGMENT allowances taken together other than personal allowances, if any. (ii) During three to six months of the period of suspension, the suspended teacher shall be entitled to receive 75% of the basic salary plus allowances taken together other than personal allowance, if any. (iii) Where the period of suspension exceeds six months, the suspension shall be treated as cancelled and the teacher concerned shall be reinstated in his position and shall be paid the balance salary of the period under suspension.”

7.2 Mr. Mehta submitted that the contention that the said Ordinance does not apply to a University teacher is misconceived and contrary to the provision and that even if it is assumed that Ordinance 172, clause 18(b) does not apply to respondent No.1 who is a University teacher, there is no power of suspension in any other provision of the Act or Statutes or Ordinances applicable to Gujarat University.

8. So as to support their respective submissions, the learned counsel for the petitioner and the respondent No.1 have relied on below mentioned decisions:-

3. 4.