The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 8509 of 2019 Application under Article 226 and 227 of the Constitution of India. Mirza Fakruddin Baig ...… Petitioner --------------- -Versus- Orissa University of Agriculture and Technology and others ...…. Opp.Parties Advocate(s) appeared in this case:- __________________________________________________________ For Petitioner : Mr. Sameer Kumar Das, P.K. Behera & N. Jena, Advocates For Opp. Parties: M/s. Pabitra Mohan Pattajoshi, S.N. Rath & N.C. Das, Advocates. [ O.P. Nos. 1 & 3] M/s. Sanjeev Udgata, Satyabrata Udgata & Asutosh Mishra, Advocates [ O.P. No. 2] __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 17th February, 2023 SASHIKANTA MISHRA, J. The petitioner challenges the order dated 22.04.2019 passed by the Chancellor, Odisha University of Agriculture and Technology (OUAT), Page 1 of 11 Bhubaneswar, copy enclosed as Annexure-7, on the ground that the same was issued without jurisdiction and is otherwise contrary to law. He also challenges the order dated 27.04.2019 passed by the Vice-Chancellor, copy enclosed as Annexure-8, placing him under suspension with immediate effect. 2. The brief facts, relevant only for deciding the writ petition are that the petitioner while working as Asst. Engineer (Civil) under OUAT, was charge sheeted vide Office Memorandum dated 10.03.2017 by the order of the Vice-Chancellor on certain allegations of misconduct. Ultimately, he was found guilty in the disciplinary proceeding and by order dated 01.03.2019, the following punishments were imposed.
Legal Reasoning
“1. Mr. Baig, Asst. Engineer (Civil) under suspension is reinstated in his service as Asst. Engineer (Civil) with immediate effect in the office of the Director of Physical Plant, OUAT. 2. The period of suspension is treated as such and will not be considered/counted towards his service. 3. Two annual increments will be stopped with cumulative effect. 4. He is warned not to repeat such irregularities, failing which he would be dismissed from service.” Being aggrieved, the petitioner submitted an Page 2 of 11 appeal to the Board of Governors under Rule 116 of the OUAT Statutes. The said appeal is pending. While the matter stood thus, by order dated 22.04.2019, the Special Secretary to Chancellor communicated the decision of the Chancellor, whereby he directed the departmental proceeding against the petitioner, to be reviewed by the Vice Chancellor by passing appropriate quantum of punishment. Such order was issued by holding that very light punishment, which is disproportionate to the act of delinquencies committed by the petitioner, had been imposed on the petitioner. As a consequence of the same the Vice Chancellor, vide order dated 27.04.2019 (Annexure-8) placed the petitioner under suspension with immediate effect. 3. Counter affidavit has been filed by the OUAT (Opposite Party Nos. 1, 3 and 4) mainly indicating the undisputed facts and by justifying the placement of the petitioner under suspension on the ground that the same was in pursuance of order dated 27.04.2019 of the Chancellor, who is the head of the institution. Reference Page 3 of 11 was made to Rule 31(c) of the OCA (CCA) Rules to reiterate that as head of the institution, the Governor and Chancellor, OUAT has every right to pass any order by observing the situation and the prayer of the petitioner. 4. The petitioner filed a rejoinder to the said counter referring to the different provisions of OUAT Employee (Condition of Service) Statutes, 1989 mainly to contend that Rule 31 of OCS (CCA) Rules is not applicable to OUAT. 5. A counter affidavit has also been filed on behalf of the Chancellor stating therein that the petitioner and one P.K. Pradhan, Director, Physical Plants, OUAT were charge sheeted on similar charges and a joint enquiry was conducted, wherein the charges were proved against both. In the said enquiry, it was found that the petitioner was primarily responsible for the misconduct but had been let off with lighter punishment while the co-delinquent- Prasant Kumar Pradhan had been compulsorily retired from service. Since the same amounts to disproportionate punishment, the Chancellor rightly interfered in the matter Page 4 of 11 by directing the disciplinary authority to review the order of quantum of punishment. 6. Heard Mr. S.K. Das, learned counsel for the petitioner; Mr. P.M. Pattajoshi, learned counsel for opposite parties No. 1 and 3; and Mr. S. Udgata, learned counsel for opposite party no.2. 7. Mr. S.K. Das has referred to the Statutes of the OUAT (as amended up to 31.12.1999) to contend that Chapter-XVI thereof relates to Discipline, Appeals and Memorials. Comparing the same with the earlier Statutes i.e., OUAT Employees (Condition of Service) Statutes, 1989, Mr. Das submits that under the un-amended statute Chapter-VI relates to Classification, Control, Discipline & Appeal. Statutes- 46 reads as under: “ Rules 12, 15 and 16 of the Orissa Civil, Service (Classification, Control & Appeal) Rules, 1962 as amended from time to time and the Government clarifications issued thereunder in the matter of suspension and for imposing major and minor penalties shall apply mutatis mutandis to all employees.” It is submitted that the said provision is not available in the amended statute and a detailed procedure has been prescribed for disciplinary action against the Page 5 of 11 errant employees. According to Mr. Das, the Governor has no power to either impose punishment or to empower the disciplinary authority to review his own order. The only power conferred on the Governor in this regard is that under Statute 117, a memorial could be submitted by a University employee against any order passed under the said Chapter. But in the present case no such memorial had been submitted. According to Mr. Das therefore, the action of the Chancellor is entirely contrary to law. 8. Mr. P.M. Pattajoshi submits that the Chancellor having taken a decision being the head of the institution, the functionaries of the OUAT are duty bound to follow the same. As regards the justifiability/legality of the impugned order it is submitted that the Chancellor has rightly issued the same. 9. Mr. S. Udgata, on the other hand has referred to the provisions of the OUAT Act, 1965 and Section 7 in particular, Clause-2 of which runs as follows: xx “7 (1) xx (2) The Chancellor shall have the right to cause inspections to be made of the University, its buildings, laboratories and equipments of institutions under the control of the xx Page 6 of 11 University by such person or persons as he thinks fit and to cause an enquiry to be made in like manner in respect of any matter connected with the administration and the finances of the University. Xx xx” xx According to Mr. Udgata this empowers the Governor to cause enquiry in respect of any matter connected with the administration and finances of the University, which is a sweeping power and therefore, the Chancellor must be held to have exercised such power in the instant case. Mr. S. Udgata has also referred to the provisions of the Orissa General Clauses Act, 1937 and in particular, to Sections 14 and 22 thereof. According to him these provisions lay down that the Chancellor by exercising his power conferred under Section 7(2) of the Act can pass any order if the same is required to be passed for the benefit of the institution. He has also referred to some decisions, namely, Kunal Singh vs. Union of India and another, reported in AIR 2003 SC 1623; Jawahar vs. State, reported in AIR 1968 Allahabad, 87; Purnachandra Jena vs. State of Odisha & Ors., reported in 92 (2001) Page 7 of 11 C.L.T. 252 and Jaya Prakash Mohanty vs. State of Odisha, represented by its Secretary, Home Department & Ors., reported in 2017(II) ILR-CUT-317. In Kunal Singh (supra) it has been held that a statute of the University cannot override the original Act under which it was established. Similarly, in the other decisions it has been held that the authority has power to review an order passed on the administrative side. 10. Having regard to the rival contentions, it would be apt to refer to the provisions of Section 7(2) of the OUAT Act, 1965, quoted hereinbefore. A bare reading of the provision would suggest that the power vested on the Chancellor under this sub-rule is meant to be exercised in respect of the things indicated at the beginning of the sub- rule, namely, the power to cause inspections to be made of the University, its buildings, laboratories and equipments etc. The word ‘administration’ and ‘finances’ used in the said rule cannot be stretched so far as to include Page 8 of 11 administrative acts in the sense of disciplinary proceedings being undertaken against any employee in view of the specific provisions therefor, contained in the statutes created under authority of the Act. In other words, the provision under Section 7(2) of the Act must be held to have conferred general power on the Chancellor to cause inquiry to be made on matters referred to therein and not to specific acts of misconduct committed by any employee for whom specific procedure has been prescribed by the Statutes. Be it noted that Chapter-VII of the Act refers to the Statutes. Section 33 lays down the matters for which the Statutes may provide. Clause-‘c’ reads as follows: xx “33 xx (c). qualifications, manner of appointment, powers and duties salaries, allowances and other conditions of service of the officers of the University Xx xx” xx xx 11. As already stated, Chapter-XVI of the Act relates to Discipline, Appeals and Memorials. It provides the nature of penalties, disciplinary authorities, procedure for imposing penalties and suspension during disciplinary proceedings, appeal and memorial. In the instant case, Page 9 of 11 there is no dispute that the Vice Chancellor is the appointing authority of the petitioner and is hence, the disciplinary authority also. It is also admitted that the petitioner has submitted an appeal to the Board of Governors (Annexure-6) by invoking the power under Rule 116(2)(b) of the Statute. The said appeal is pending. 12. The petitioner has not submitted any memorial to the Chancellor. Chapter-XVI contains no provision of review and/or exercise of power by the Chancellor in respect of any order passed by the disciplinary authority or even the appellate authority. To such extent therefore, the action of the Chancellor must be held to be without jurisdiction. What the Chancellor appears to have done in the instant case is, while reviewing the case of the co- delinquent, who was also punished in the same disciplinary proceeding, he formed the view that the punishment meted out to the present petitioner was light and therefore, disproportionate to the misconduct proved. Since the disciplinary authority has already imposed a punishment and the appellate authority is in seisin over Page 10 of 11 the matter, the impugned order passed by the Chancellor is rendered unconscionable in the eye of law. 13. For the foregoing reasons therefore, the writ petition is allowed. The impugned orders under Annexures- 7 and 8 are hereby quashed. 14. It is needless to mention that any observations made in this order shall not have any bearing on the merits of the appeal said to be pending before the Board. ……..…………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 17th February, 2023/ A.K. Rana, P.A. Page 11 of 11