LAW FOR ALL : if any person who is or was a legal practitioner, including a retired Hon'ble Judge is appointed as Inquiry Officer in an inquiry initiated against an employee, the denial of assistance of legal practitioner to the charged employee would be unfair.

Friday, February 6, 2015

if any person who is or was a legal practitioner, including a retired Hon'ble Judge is appointed as Inquiry Officer in an inquiry initiated against an employee, the denial of assistance of legal practitioner to the charged employee would be unfair.

if any person who is or was a legal practitioner, including a retired
Hon'ble Judge is appointed as Inquiry Officer in an inquiry initiated
against an employee, the denial of assistance of legal practitioner to the
charged employee would be unfair.
For the reasons aforesaid, we hold that all the Departmental
inquiries conducted against the appellant were in violation of rules of
natural justice.
This apart as the third inquiry report is based on
extraneous facts and first part of the charge held to be proved in
memorandum dated 26th March, 2010 being not the part of the charges shown
in the (third) chargesheet, the order of punishment, including Resolution
by memorandum dated 26th March, 2010 cannot be upheld.
For the reasons aforesaid, we set aside both penal memoranda dated
22nd February, 2010 and 26th March, 2010. In effect, the appellant stands
reinstated to the post of Professor but in the facts and circumstances, we
allow only 50% of back wages (salary) to appellant for the intervening
period i.e. from the date of his disengagement till the date of this
judgment.
However, the aforesaid period shall be treated 'on duty' for all
purposes including seniority, increment, fixation of pay, retrial benefits,
etc. The respondents are directed to pay the appellant arrears within two
months, failing which they shall be liable to pay interest @ 6% from the
date of this judgment.
The appeal is allowed with aforesaid observations and directions. No
costs.

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8224 OF 2012

PROFESSOR RAMESH CHANDRA ...APPELLANT

VERSUS

UNIVERSITY OF DELHI & ORS. ...RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

This appeal has been preferred by the appellant against the impugned
judgment dated 1st March, 2012 passed by the High Court of Delhi at New
Delhi in Writ Petition (C) No.2547 of 2010. By the impugned judgment, the
High Court dismissed the writ petition, upheld Para 6 of the Annexure to
Ordinance XI of University of Delhi and refused to interfere with the show
cause notice issued on the appellant and the memorandum(s) by which the
appellant was punished and removed from the service of the Delhi
University.

2. The factual matrix of the case is as follows:-

The appellant was a Professor in the University of Delhi (hereinafter
referred to as the, 'University'). According to the appellant while
serving in the University he wrote a letter dated 1st December, 1990
addressed to the Union Minister of State for Welfare requesting sanction of
Rs.5 crores for starting Dr. B.R. Ambedkar Centre for Biomedical Research
(hereinafter referred to as the, 'ACBR'). In response to the said letter,
office of Dr. B.R.Ambedkar Centenary Celebration under Ministry of Welfare
by letter dated 22nd January, 1991 invited the appellant to submit a
detailed project report for the establishment of ACBR commemorating birth
centenary of Dr. B.R. Ambedkar. On 15th March, 1991, the University
forwarded the proposal submitted by the appellant for establishment of ACBR
in the University and necessary certificate was given to the Government of
India by the University, especially in respect of autonomy of the ACBR.
The Central Government accepted the proposal and the Prime Minister laid
down the foundation stone of ACBR. The Executive Council of the University
vide Resolution dated 13th April, 1991 approved the project proposal for
setting up ACBR and appointed a Committee to finalize the academic plan and
ordinances. Ordinance XX of the University relates to Colleges and
Institutions maintained by the University including ACBR. A Committee under
the Chairmanship of Vice-Chancellor of the University in its meeting held
on 4th November, 1991 recommended the appellant's name to function as
Director till a regular appointment is made. The Academic Council by its
decision dated 20th December, 1991 approved the said recommendation and
further recommended the Executive Council to appoint the appellant as
Director till a regular appointment is made. The Executive Council vide its
Resolution No.243 (1) dated 15th February, 1992 accepted and approved the
recommendations of the Academic Council. Pursuant to the said Resolution,
the Assistant Registrar (E-NT) issued a letter dated 30th May, 1995
informing the appellant about the decision of the Vice Chancellor,
appointing him as the Director of ACBR till a regular appointment is made
to the said post.

2.1) The appellant was already functioning as Professor in the Department
of Chemistry, University of Delhi. He was Joint Proctor in the University
between 1996 and 1999 and during this period he was a Visiting Scientist at
the Rockefeller University, Cornell University - Medical College, Oxford
University and several other Universities and institutes. The appellant was
also functioning as Chairman of Board of Research Studies, Faculty of
Science and Chairman of Publication Advisory Committee, University of Delhi
during the said period.

2.2) Further case of the appellant is that he was appointed as Vice
Chancellor, Bundelkhand University, Jhansi in March, 1999 and the same was
informed to respondent no.3-Governing Body of ACBR. According to appellant,
the Governing Body resolved that the appellant will continue as Director
even after taking charge as the Vice Chancellor in another University i.e.
Bundelkhand University, Jhansi, Uttar Pradesh. On 30th July, 1999, the
Chairman of the Governing Body, ACBR informed the Vice Chancellor of the
University about the said decision.

2.3) On 20th September, 1999, the Registrar of University notified that the
Vice Chancellor had appointed Professor Vani Brahmachari as Officiating
Director, ACBR during the leave period of the appellant and specified that
the appellant will continue to provide Academic Leadership to the ACBR.

2.4) On 6th October, 2000, respondent no.3 resolved that the appellant
should continue to provide help and guidance, though he was functioning as
Vice Chancellor, Bundelkhand University. However, it was specified that in
absence of the appellant, Dr. Vani Brahmachari will look after the day to
day work of the office. Respondent no.3-Governing Body, ACBR vide its
resolution no.6-74 dated 6th October, 2000 resolved to get the ACBR
registered under Societies Act and then to approach the UGC and Government
of India for declaring the ACBR as Institute of National importance. It was
decided to prepare a draft and circulate to the members of the Governing
Body to discuss the matter in the next meeting.

2.5) Further case of the appellant is that respondent no.3-Governing Body
of ACBR vide its resolution dated 15th September, 2001 considered and
approved the draft of Memorandum of Association of ACBR which was forwarded
to the University for information and necessary action.

2.6) In February, 2005, a Search Committee for selection for the post of
Vice Chancellor in University was constituted. The appellant as well as
respondent no.2-Professor Deepak Pental were candidates whose names were
initially short listed by the Search Committee. In the meantime, the
appellant was removed from the post of Vice Chancellor, Bundelkhand
University, Jhansi, Uttar Pradesh by order dated 16th July, 2005 fifteen
days prior to the expiry of his tenure.

2.7) The aforesaid order of removal was challenged by the appellant by
filing Civil Miscellaneous Writ Petition No.51370 of 2005 before the High
Court of Judicature at Allahabad. Prof. Deepak Pental was officiating as
Pro-Vice Chancellor, University of Delhi during that time. According to the
appellant, the said officiating Pro-Vice-Chancellor was not in the office
on 18th July, 2005 and the said fact came to his knowledge when he
contacted the officiating Vice Chancellor to inform him about his removal
from the Bundelkhand University. The appellant also informed the same to
the Head, Department of Chemistry; Dean, Faculty of Science, University of
Delhi; Chairman, Governing Body, ACBR and Dy. Registrar, ACBR. Further,
according to the appellant, on the same day i.e. on 18th July, 2005, he
gave his joining report to the University of Delhi but it was not accepted.
The appellant came to know the same from the Head of Chemistry Department
who had received a letter from the Registrar, Delhi University regarding
removal of the appellant from Bundelkhand University and hence he was
informed that his joining would be subject to the clearance from the
Chancellor of Bundelkhand University. The Registrar, University of Delhi
wrote letters to the Commissioner of Jhansi, who was acting Vice Chancellor
of Bundelkhand University u/s 12(10) of the U.P. State Universities Act,
1973, the Principal Secretary to the Governor of Uttar Pradesh (Chancellor,
Bundelkhand University, Jhansi) and the Registrar, Bundelkhand University
requesting them to supply information regarding curtailment of the tenure
of the appellant. The Principal Secretary to the Governor of Uttar Pradesh
(Chancellor, Bundelkhand University) replied to the letter on 26th July,
2005 giving details regarding removal of the appellant from the post of
Vice Chancellor, Bundelkhand University. On 28th July, 2005, the Principal
Secretary to the Governor of Uttar Pradesh (Chancellor, Bundelkhand
University) further informed the Registrar, University of Delhi that as per
the directions of the High Court, the appellant stood relieved from 16th
July, 2005 and subsequently, the appellant was also informed vide letter
dated 8th August, 2005 that since he was relieved from 16th July, 2005 no
further action was required from Chancellor of the Bundelkhand University.
The Registrar, Bundelkhand University also replied to the Registrar,
University of Delhi on 2nd August, 2005 informing him regarding allegation
against the appellant. The Secretary, UGC addressed a letter to Professor
Deepak Pental on 4th August, 2005 informing him about removal of appellant
from Bundelkhand University with copy to the Chancellor for information and
necessary action. On 4th August, 2005 a note was endorsed by Prof. Deepak
Pental on the letter of UGC to the effect that "summary of the charges
against Prof. Ramesh Chandra needs to be made". According to the
appellant, such note was given by Prof. Deepak Pental with a mala fide
intention of involving appellant in some controversy so that his name would
be dropped from the list of the Search Committee as contender for the post
of Vice Chancellor, University of Delhi. The name of the appellant was
dropped and on 1st September, 2005, Prof. Deepak Pental was appointed as
Vice Chancellor of University of Delhi.

2.8) The appellant has alleged mala fide against Dr. Deepak Pental and has
taken plea that Prof. Pental did not stop harassing the appellant even
thereafter. He further alleged that after his removal from the Bundelkhand
University, his joining to Delhi University was accepted w.e.f. 18th July,
2005. He also placed reliance on decision of Governing Body of ACBR wherein
it was recorded that the appellant would continue to function as Acting
Director (Hony.), ACBR. The said resolution of the Governing Body was
forwarded to the Vice Chancellor of the University of Delhi. The Chairman
of the Governing Body, ACBR wrote a letter on 23rd September, 2005 to the
Vice Chancellor of Delhi University regarding its stand on the position of
the appellant in ACBR. The Executive Council of the University of Delhi
passed a resolution no.132 on 17th October, 2005 that the appellant will
not be allowed to hold any administrative position in Delhi University
henceforth and resolved to issue a show cause notice to the appellant for
(a) suppressing information with regard to allegation on account of which
he was removed from the post of Vice-Chancellor University at the time of
his premature return to Delhi University and (b) unauthorisedly assuming
the office of the Director, ACBR, Delhi University for the period from
18.7.2005 to 24.7.2005 in contravention of the statutory provisions of the
University. It was also resolved that the decision, if any, taken by or at
the instance of the appellant while unauthorisedly occupying the post of
the Director, ACBR, or thereafter, be treated as null and void.

2.9) On 2nd November, 2005 a memorandum was issued to the appellant
containing the allegations set out in the Resolution dated 17th October,
2005 and calling upon the appellant to submit his explanation.

2.10) The appellant submitted his reply on 12th December, 2005 and
requested for supply of certain documents. According to him, the documents
were not supplied to him.

2.11) Further case of the appellant is that the Governing Body of ACBR
after considering all the communications from the Registrar, University of
Delhi and the Executive Council Resolution No.132 dated 17th October, 2005
reiterated its earlier decision authorizing the appellant to act as
Director of the ACBR and to take necessary decisions in that capacity until
a regular appointment is made. The Governing Body of ACBR further
authorized the Chairman and the Director to complete all formalities for
converting it into an autonomous institution so that ACBR could be
converted to a deemed University and an institution of national importance
by the next academic session.

2.12) On 2nd January, 2006 the Registrar, University of Delhi issued an
office order that consequent upon Dr. Vani Brahmachari proceeding on leave
Dr. Daman Saluja would look after the day to day work of the office of
Director, ACBR until further orders. On 25th January, 2006 the Registrar of
the University forwarded another memorandum calling upon appellant's
explanation w.r.t. memorandum dated 2nd November, 2005 within fifteen days.
The appellant submitted his final reply on 8th February, 2006.

2.13) It appears that the appellant in the meantime moved an appeal before
the Executive Council against Resolution dated 17th October, 2005 but no
decision appears to have been taken. The Governing Body of ACBR continued
with its efforts towards registration of the Centre as a Society. On 5th
September, 2006, the appellant was instructed by the Governing Body to file
documents for the registration of the ACBR with the Registrar, Societies,
Govt. of NCT, to file an approved affidavit stating that the ACBR is the
legal allottee and is in possession of the property/premises of the old
USIC Building Delhi University Campus, Delhi and ACBR have no objection if
the registered office of the Society is situated in the said premises.

2.14) The appellant earlier moved before the High Court in Writ Petition
No.16000 of 2006 challenging the Resolution of Executive Council dated 17th
October, 2005. Allegation of bias was made against Prof. Deepak Pental
therein.

2.15) On 21st March, 2007 Executive Council of the University passed a
resolution to appoint a retired High Court Judge to hold an inquiry about
allegation against the appellant and pending the inquiry to suspend the
appellant. A memorandum dated 22nd March, 2007 was issued by the University
placing the appellant under suspension and debarring his entry in the
premises of the University.

2.16) Justice 'X' - a retired Judge of the High Court was appointed to
inquire into the allegation against the appellant and vide letter dated
23rd May, 2007 he informed the appellant of his appointment and called him
for the hearing on 4th June, 2007. The appellant moved before the High
Court by filing writ petition praying for stay of all further proceedings
against him.

2.17) In the meantime, the High Court of Allahabad vide its judgment and
order dated 11th June, 2007 in Civil Misc. Writ Petition No.51370 of 2005
quashed the order dated 16th July, 2007 passed by the Chancellor,
Bundelkhand University, Jhansi regarding the removal of the appellant from
the post of Vice Chancellor and held that the removal order was contrary to
the provisions of the UP State Universities Act, 1973.

2.18) The aforesaid fact was intimated to the Vice Chancellor of University
of Delhi on 16th June, 2007 with a request to withdraw the resolutions and
memorandum passed against the appellant.

2.19) A fresh memorandum was issued by the University on 27th August, 2007
alleging that the appellant has misused the telephones of the ACBR during
the period 1999-2005 though he was not functioning as Director during the
said period. However, the Inquiry Officer recorded that in view of the
discussions and reply submitted none of the charges were proved and the
appellant was absolved of the charges.

2.20) Another memorandum was issued by the University on 16th October, 2007
imputing charges of misconduct against the appellant and the appellant was
asked to submit his written explanation to the said memorandum within
fifteen days.

2.21) The writ petition being W.P.C. No.16000 of 2006 preferred by the
appellant challenging the Resolution dated 17th October, 205 was dismissed
on 11th April, 2008. In the meantime, the appellant was informed by Justice
'X' Inquiry Officer vide letter dated 5th May, 2008 that another inquiry
was being initiated in respect of memorandum dated 16th October, 2007 and
asked the appellant to take part in the inquiry. In the meantime, the
prayer of the appellant for review of the order of suspension was also
rejected. Therefore, the appellant filed Writ Petition No.4436 of 2008
challenging the resolution dated 21st March, 2007 and memorandum dated 22nd
March, 2007. The appellant being aggrieved by the order of learned Single
Judge in W.P.C. No.16000 of 2006 preferred LPA No.229 of 2008. The said
LPA No.229 of 2008 was heard along with Writ Petition No.4436 of 2008 and
both were dismissed by the High Court by common judgment dated 21st May,
2009.

2.22) The appellant challenged the aforesaid judgment by filing the Special
Leave Petition Nos.13753 and 14150 of 2009 before this Court. In the said
case the appellant alleged bias against the Vice Chancellor Prof. Deepak
Pental in the matter of issuance of the charge sheet. This Court initially
vide order dated 18th September, 2009 directed the respondent to conclude
the inquiry against the appellant within two months. The Inquiry Officer
concluded the inquiry pursuant to Memorandum dated 2nd November, 2005 and
submitted his report on 21st October, 2009. A copy of the inquiry report
was forwarded to the appellant. According to the appellant, Inquiry
Officer neither allowed oral evidences nor supplied relevant documents
sought by him. The appellant submitted his reply to the said report on 28th
January, 2010.

2.23) On 19th December, 2009 the Inquiry Officer concluded the inquiry
pursuant to memorandum dated 27th August, 2007 and 16th October, 2007 and
submitted his reports, both dated 23rd February, 2010. A copy of the
inquiry report pursuant to memorandum dated 16th October, 2007 was
forwarded to the appellant asking him to submit his reply within twenty one
days. The appellant requested the Registrar, University of Delhi to supply
certain documents which were referred to by the Inquiry Officer and
submitted interim reply on 18th March, 2010. Subsequently, the Executive
Council passed Resolution No.281 dated 25th March, 2010 disengaging the
appellant from the services with immediate effect and subsequently a
memorandum dated 26th March, 2010 was issued to the said effect. The
aforesaid decision was communicated to the appellant by the Registrar.

2.24) This Court on 5th April, 2010 dismissed the SLP(C) Nos.13753 of 2009
and 14150 of 2009 filed by the appellant challenging the High Court order
dated 21st May, 2009 in LPA No.229 of 2008 but granted the liberty to the
appellant to challenge the punitive orders. The appellant was permitted to
take all the pleas taken in the SLP including the challenge to the validity
and propriety of the inquiry proceedings conducted by the University of
Delhi. Pursuant to the said order, the appellant filed Writ Petition
No.2547 of 2010 before the High Court of Delhi at New Delhi which was
dismissed by impugned judgment dated 1st March, 2012.

3. Learned counsel for the appellant submitted that there was illegality
and unfairness in the initiation and conduct of inquiry in regard to the
allegations which led to the removal of appellant. It was also submitted
that the Chancellor (Bundelkhand University) has not written to Delhi
University suggesting action to be taken against the appellant. Despite the
same, information regarding contents of charges was solicited unilaterally
by the Registrar of Delhi University based on newspaper reports and the
communication dated 4th August, 2005 sent by the UGC to the Vice Chancellor
of University. Learned counsel further contended that in the absence of
Chancellor, Bundelkhand University suggesting action against the appellant,
the UGC need not have, even sent the above communication.

However, the aforesaid submission cannot be accepted as it was always open
to the competent authority to initiate departmental proceeding against its
employee, with regard to any misconduct or dereliction of duty if found
during performance of duty while posted in the office or on deputation. In
the present case, it was well within the jurisdiction of the university to
initiate such a departmental inquiry when it is noticed that its employee
was prematurely removed from an office to which he was deputed to on
account of certain charges against him.

4. It was further submitted on behalf of the appellant that none of the
memoranda relating to disciplinary action were ever placed before the
Executive Council, therefore, memoranda cannot be said to be charges or
allegations considered or approved by the Executive Council (Disciplinary
Authority).

The aforesaid submission cannot be accepted in view of the stand taken by
the University and the material on record.

The counsel for the respondents was directed to produce the original record
relating to all the proceedings/memoranda, all articles of charges
including the office note and inquiry report. However, only the record
relating to memorandum dated 16th October, 2007 has been provided. We have
perused the original record produced by the respondents and find no
illegality in the manner of initiation of departmental proceeding as the
same was initiated as per Executive Council Resolution No. 188 dated 21st
March, 2007.

5. It was further submitted that the appellant could not file the proper
reply to all the three memoranda due to non supply of documents sought by
him towards submitting an effective reply. However, such submission cannot
be accepted in absence of specific pleading as to which were the documents
sought for but not supplied by the respondents and how they were connected
with the charges leveled against the appellant.

6. Another ground taken by the learned counsel for the appellant was
that there were illegalities in the conduct of the inquiry. According to
him the appellant requested the assistance of a legal practitioner as the
presenting officer as well as the Inquiry Officer was legally qualified
person regularly engaged in disciplinary proceedings but the said request
was declined. It was further submitted that the appellant was not given
opportunity for examination of witness and there was no legal evidence
before the Inquiry Officer to bring home the charges.

We have gone through the inquiry report(s) submitted by the Inquiry Officer
and other records. The aforesaid submission advanced on behalf of the
appellant will be discussed at an appropriate stage.

7. With regard to appellant's allegation of mala fide against Prof.
Deepak Pental, it was rightly contented on behalf of the respondents that
in view of earlier decision of this Court in special leave petition
preferred by the appellant and in absence of any specific evidence, plea of
mala fide cannot be raised.

8. Learned counsel for the appellant further contended that the service of
the appellant was terminated without providing any notice as provided for
in para 6 of the Annexure to Ordinance XI which reads as follows:-

"6.(1)Notwithstanding anything hereinbefore contained, the Executive
Council of the University shall be entitled summarily to determine the
engagement of the teacher on the ground of misconduct in accordance with
the provisions hereinafter set forth.

(2) The Vice-Chancellor may, when he deems it necessary, suspend the
teacher on the ground of misconduct. When he suspends the teacher, he
shall report it to the next meeting of the Executive Council.

(3) The Executive Council shall investigate all matters reported to it by
the Vice-Chancellor about the misconduct of the teacher whether he has been
suspended or not. The Executive Council may appoint a Committee for the
purpose. The teacher shall be notified in writing of the charges against
him and shall be given not less than three weeks' time to submit his
explanation in writing.

The Executive Council or the Committee may hear the teacher and take such
evidence as it may consider necessary. The Executive Council may determine
the engagement of the teacher where it deems that the misconduct of the
teacher deserves to be dealt within that manner, after it has considered
the explanation and the evidence, if any, and/or the report of the
Committee, if one has been appointed.

(4) Where the termination of the service on the ground of misconduct is
after suspension by the Vice-Chancellor as aforesaid, the termination of
service may be from the date of suspension, if the Executive Council so
directs."

9. In the present case, as noticed above, detailed procedure is followed in
terms of said provision. The appellant was suspended by the Vice-Chancellor
on the ground of misconduct. Notice was served upon the appellant and the
Executive Council resolved to conduct an inquiry giving opportunity to the
appellant to appear before the inquiry officer. Disciplinary authority
terminated the service of the appellant after following all the due
procedures. Therefore, the said submission as advanced on behalf of the
appellant cannot be accepted.

10. Before the High Court and this Court, one of the pleas taken was that
the charges as shown in the memoranda do not constitute any misconduct. The
High Court observed that misconduct though not defined in the Act or in
Ordinance XI or in the Annexure thereto, is a well understood term and
paragraph 6 of Ordinance XI cannot be held to be bad and liable to be
struck down merely for the reason of misconduct having not been defined.

11. On behalf of appellant, it was further contended that the departmental
proceeding was conducted in violation of rules of natural justice and
extraneous matters were taken into consideration to hold the appellant
guilty. But such submission was disputed by learned Senior Counsel for the
university.

12. Before dealing with rival contentions made by the learned counsel for
the parties, we deem it proper to deal with the chargesheet - procedure
followed in the departmental proceedings and order of punishment.

A) 1st Chargesheet - memorandum dated 2nd November, 2005 The charges
levelled against the appellant can be summarized as follows:

(i) The appellant wilfully suppressed the material fact that the appellant
was removed from the post of Vice Chancellor, Bundelkhand University,
Jhansi before the completion of term of his deputation, to mislead the
University.

(ii) The appellant wrote letter dated 8th August, 2005 to the Vice
Chancellor in which he signed as Founder Director of ACBR knowing well that
the term 'Founder Director' gave a misleading impression that he was the
founder and was continuing as its Director. Further there is no such post
as Founder Director

(iii) He has written other letters that gives misleading impression about
his status.

Before dealing with the correctness of the above allegations, we
would like to discuss the background events which took place prior to the
issuance of the said memorandum.

13. The Executive Council of the University of Delhi by its Resolution
dated 17th October, 2005 first decided to punish the appellant for his
alleged acts and to issue a show-cause notice to the appellant. This is
apparent from the Resolution No.132 dated 17th October, 2005 which reads as
follows:

"132. The Executive Council considered letters received from (a) the
Principal Secretary to the Governor of Uttar Pradesh dated 26.7.2005, (b)
the Registrar, Bundelkhand University, Jhansi dated 2.8.2005, and (c) the
Joint Secretary, UGC dated 4.8.2005 forwarding therewith a copy of the
order of the Chancellor of Bundelkhand University dated 16.7.2005
indicating removal of Prof. Ramesh Chandra from the post of the Vice-
Chancellor, Bundelkhand University. After due deliberations on the above
mentioned letters, the Council resolved that:

Prof. Ramesh Chandra be not allowed to hold any administrative position in
Delhi University henceforth:

A show cause notice be issued to Prof. Ramesh Chandra for (a suppressing
information with regard to allegation on account of which he was removed
from the post of Vice-Chancellor University at the time of his premature
return to Delhi University and (b) unauthorisedly assuming the office of
the Director, Dr. B.R. Ambedkar Centre for Bio-medical Research, Delhi
University for the period from 18.7.2005 to 24.7.2005 in contravention of
the statutory provisions of the University; and

The decision, if any, taken by or at the instance of Prof. Ramesh Chandra,
while unauthorisedly occupying the post of the Director, Dr. B.R. Ambedkar
Centre for Biomedical Research, or thereafter, be treated as null and
void."

It is only after such decision to punish the appellant the formal
chargesheet was issued by memorandum dated 2nd November, 2005 as quoted
hereunder:

"UNIVERSITY OF DELHI

No. Estab. V(T)/2005/2083

November 2, 2005.

MEMORANDUM

Whereas it is noted that Prof. Ramesh Chandra, Department of Chemistry,
vide his letter dated 18thJuly, 2005 addressed to the Vice-Chancellor
conveyed that after completing his tenure as Vice-Chancellor, Bundelkhand
University, he had returned back and reported for duty as Professor in the
Department of Chemistry with effect from 18.7.2005 by this statement. Prof.
Ramesh Chandra willfully suppressed the material fact that he was removed
from the post of Vice-Chancellor, Bundelkhand University before the
completion of the term of his deputation, to mislead the University
authority.

And whereas Prof. Ramesh Chandra, on reporting for duty in the
University, unauthorisedly tried to join as Director, ACBR as is evident
from the notification No. ACBR/05/743 dated 18.7.2005 issued by the Deputy
Registrar, ACBR which stated that Prof. Ramesh Chandra had joined back as
fulltime Director of ACBR in the afternoon of 18.7.2005 after completing
the tenure as Vice-Chancellor, Bundelkhand University, Jhansi. This
notification (a) conveyed a misleading impression that he had joined there
after completion of tenure as Vice-Chancellor of Bundelkhand University
whereas he was actually removed from the post on charges of abuse of power
before completion of his tenure; and (b) misleadingly referred to Establ.
V(T)/99/ACBR/35657 dated 20th September, 1999 to wrongly convey that as per
this order he could join as full-time Director. The Order No.Estab.
(T)V/99/ACBR/35657 dated 20.9.1999 deals with appointment of Prof. Vani
Brahamchari as officiating Director and specified the period of her office
as the period during the leave of Prof. Ramesh Chandra and merely permitted
Prof. Ramesh Chandra to provide academic leadership to ACBR. This
arrangement at that point of time and consequently ATTEMPT OF Prof.
Ramesh Chandra to join as Director of ACBR was ultra vires, and therefore,
null and void ab initio. Then at the instance of this University's letter
dated 19.7.2005 clarified that the notification for Prof. Ramesh Chandra's
joining as Director stands withdrawn:

And whereas Prof. Ramesh Chandra wrote a letter dated 8.8.2005 to the Vice-
Chancellor, in which he signed as Founder Director, ACBR, knowing well
that the term 'founder director' gave a misleading impression that he was
the 'founder director of the Centre or was the founder and was continuing
as its Director. When Prof. Ramesh Chandra was placed in additional charge
of the post of Director of ACBR vide letter No. Estab.III/BRAC/95 dated
30.5.2005, his substantive post was that of a professor of Chemistry in the
University. All incumbent moves away from his substantive post on
deputation/EOL. Further, there is no such post as founder director.
Therefore, signing a letter addressed to the Vice-Chancellor on 8.8.2005 as
founder director ;was clearly to give a misleading impression about its
position in ACBR which besides being non-existent, was neither legally
sustainable nor administratively proper because Prof. Ramesh Chandra was
appointed in the Chemistry Department of the Delhi University and not
appointed/deputed to ACBR as Professor;

And whereas Prof. Ramesh Chandra had further written letters dated
9.9.2005 and 26.9.2005 on the letter pad of ACBR signing as Director which
seeks to convey a misleading impression about his status. He wrote to the
Chairman of the Governing Body, ACBR vide his letter dated 30.8.2005. In
which he had referred to some decisions of the governing body to resume as
Director of ACBR. This act of Prof. Ramesh Chandra tantamount to
seeking perpetuation of the same misleading impression as indicated above.

And whereas the University had clarified the position with regard to
the post of Director, ACBR vide its letter no.
SPA/R2005/2007 dated 29.8.2005 addressed to the Chairman of the Governing
body of ACBR with copy to the officiating Director of ACBR in which it was
clearly stated that there was no provision of retaining lien on the
additional charge and that Prof. Vani Brahmachari continue to be the
officiating Director until a regular director was appointed.

And whereas Prof. Ramesh Chandra's unauthorized and irregular attempts of
usurpation to the post of Director ACBR tantamount to creation of false
records and tampering with other records of ACBR which is a serious
misconduct on his part.

And whereas the above acts of Prof. Ramesh Chandra on irregularly
insisting on his position as additional charge of the Director in the ACBR
without having undergone the process of selection prescribed in clauses 4
of sub-heading 6 on ACBR contained in Ordinance XX tantamount to gross
misconduct within the meaning of clause 6 of Annexure to Ordinance XI of
the University.

And whereas some of the examples of misconduct on the part of Prof.
Ramesh Chandra, particularly, the suppression of facts of his removal from
the post of Vice Chancellor of Bundelkhand University to convey misleading
impression that he repatriated from Bundelkhand University after completing
his tenure and the unauthorized claim about directorship of ACBR were
discussed by the Executive Council in its meeting on 17th October, 2005 and
the Executive Council decided that his explanation be called for his above
mentioned acts of serious misconduct;

Now, therefore, Prof. Ramesh Chandra is hereby directed to submit
in writing an explanation to this memorandum within 15 days of its date of
issue, failing which it shall be presumed that he has no explanation to
offer and the matter shall be placed before EC for consideration/action in
accordance with Clause 6 of Ordinance XI of the University of Delhi.

Registrar

Prof. Ramesh Chandra
Department of Chemistry
University of Delhi
Delhi."

14. The retired Judge of Delhi High Court, Justice 'X', Inquiry Officer,
by the report dated 24th November, 2009 held as follows:

"For all these reasons, I am of the opinion that the charges against the
delinquent that he had concealed the fact of his removal from the post of
Vice-Chancellor, Bundelkhand University with a view to mislead the
University and that despite his not being Director of ACBR, he continued to
describe himself as Founder Director or Director, ACBR with a view to give
a misleading impression, stand proved.

'X'
Dated: 24.11.2009 Inquiry Officer

//TRUE COPY//"

Thereafter the formal order of punishment was issued by memorandum
dated 22nd February, 2010 communicating displeasure of the Executive
Council, holding the act of the appellant to be unbecoming of a teacher of
the University and prohibiting the appellant from being associated with any
affairs of ACBR in any capacity whatsoever. The relevant portion of the
said memorandum reads as follows:

"And, therefore, Prof. Ramesh Chandra (under suspension) is hereby
communicated the displeasure of the Executive Council and that the act is
unbecoming of a teacher of the University. Prof. Ramesh Chandra (under
suspension) is further communicated the decision of the Executive Council
that he shall not be associated with any affairs of the Dr. B.R. Ambedkar
Centre for Biomedical Research in any capacity whatsoever and that he shall
not be considered for any administrative position in the University. Prof.
Ramesh Chandra shall continue to be under suspension till further orders."

From the aforesaid facts it is clear that the respondent first
decided to punish the appellant and only thereafter memorandum of charges
was framed, show-cause notice was issued and inquiry was conducted, just to
give it a colour of legal procedure.

15. There is nothing on the record to suggest that the appellant
'wilfully' suppressed the material fact that he was removed from service
before completion of term of his deputation to mislead the respondents. It
is true that the appellant in normal course should have informed the Delhi
University before rejoining that he has been removed from the post of Vice
Chancellor, Bundelkhand University, Jhansi before the completion of his
deputation period. Such action can be termed to be "dereliction of duty"
but cannot be held to be misconduct for the purpose of restraining the
appellant permanently from appointment to the post of Director, ACBR.

16. It is not in dispute that the appellant was the First Director of the
ACBR. The same was also accepted by the Delhi University in its memorandum
dated 2nd November, 2005. Therefore, in his letter-head he has shown him as
Founder Director of ACBR, that cannot be said to be against the Code of
Conduct to hold the same as 'misconduct' on the part of the appellant.

17. This apart, as there is no provision in the concerned statute to
withhold appointment permanently, it was not open to the University to pass
such order.

For the reasons aforesaid, the order of punishment contained in
Memorandum dated 22nd February, 2010 cannot be upheld. The said memorandum
is accordingly declared illegal and cannot be upheld.

B) 2nd Chargesheet - Memorandum dated 27th August, 2007:

18. A fresh memorandum was issued by the University on 27th August, 2007
alleging that the appellant caused ACBR to pay an amount of Rs.16,63,284/-
towards unauthorized expenditures incurred by him like telephone bills and
bills of security guards and peon, during the period 1999-2005 though he
was not functioning as Director of ACBR during the said period.

The appellant denied the allegation and again retired Judge of the Delhi
High Court, Justice 'X' was appointed as Inquiry Officer who by his report
dated 23rd February, 2010 held that none of the charges against the
appellant has been proved. Relevant portion of the said inquiry report
reads as follows:

"In view of the above discussion, none of the charges against the
delinquent has been proved and he is, therefore, absolved of all the
charges against him leveled vide the memorandum dated 27th August, 2007.

Justice 'X', (Retd.)
Dated: 23.02.2010 Inquiry Officer"

C) 3rd Chargesheet - Memorandum dated 16th October, 2007:

19. In the memorandum dated 16th October, 2007 the appellant was imputed
with the charge which can be summarized as follows:
By acting as a signatory who subscribed his name to the registration of
ACBR as a society and by verifying the affidavit which affirmed that he has
no objection towards the location of the registered office of ACBR in the
University Campus, the appellant attempted to misappropriate the assets of
the University. Such act was alleged to be a misconduct. The memorandum
dated 16th October, 2007 reads as follows:
"MEMORANDUM

Whereas it has come to the notice of the University that Prof. Ramesh
Chandra is one of the signatories who subscribed their names to the
proposed formation of a Society by the name "Dr. B.R. Ambedkar Centre for
Biomedical Research" with the description of its office as "old USIC
Building Delhi University Campus, Delhi-7". As per the records of the
Registrar of Societies Delhi this society has been registered on 7.9.2006
vide Registration No.56511. This is in violation of rules and
regulations of the University. Dr. B.R. Ambedkar Centre for Biomedical
Research (ABCR) is an institution maintained by the University. The
University has not resolved or contemplated to form a society out of the
existing ACBR. Since the proposal in the society registered on 7.9.2006
has shown the existing ACBR under the University of Delhi as its address it
tantamount to misappropriation of the assets of University maintained
institution for an unauthorized purpose. Thus, such a move is fraudulent.

And whereas Prof. Ramesh Chandra had given an affidavit which was
verified by him on 5.9.06 which he had solemnly affirmed that

"I shall have no objection if the registered office of the society named
"Dr.B.R.Ambedkar Centre for Biomedical Research' shall be situated at my
above said premises." The building in which the ACBR of the University of
Delhi is situated is the property of the University and no one has any
right whatsoever to appropriate it for any purpose other than what the
Executive Council of the University authorizes.

And whereas Prof. Ramesh Chandra had no locus standi to give any such
affirmation still had solemnly affirmed in the same affidavit that "ACBR is
the legal allottee and in possession of the property bearing no. Old USIC
building Delhi University Campus Delhi-7" which is contrary to the facts.
The fact is that the premises where the ACBR of the University of Delhi is
presently located (i.e. old USIC building University of Delhi, Delhi-7) was
not allotted by University of Delhi to the proposed society which was
fraudulently registered on 7.9.2006.

And whereas Prof. Ramesh Chandra verified the above mentioned
affidavit on 5.9.2006 saying "that the contents of the above affidavit are
correct, true and to the best of my knowledge and belief nothing has been
concealed therefrom". But while verifying this affidavit on 5.9.2006 he
fraudulently concealed a material fact that the authorized body of the
University of Delhi i.e. the Executive Council had not resolved to convert
ACBR into a registered society. He also concealed the fact that he being a
Professor in the Department of Chemistry had no official position to
furnish such affidavit and therefore this act of Prof. Ramesh Chandra
tantamount to fraudulent misrepresentation of facts with a malafide motive.

And whereas the above acts of Prof. Ramesh Chandra constitute misconduct
by misleading the Registrar of societies Govt. of NCT Delhi and also the
general public by fraudulently attempting to convert an University of Delhi
as a registered society and clandestinely declaring Dr. B.R. Ambedkar
Centre for Biomedical Research as a Society and its building as its
registered office which tantamounts to misappropriation of the University's
property."

20. The appellant submitted his explanation denying the allegation and
requested for supply of documents towards submitting an effective reply.
But the same were not supplied. He also sought aid of a lawyer but it was
also denied. Nothing is on the record to suggest that any list of witnesses
or list of documentary evidence was supplied to the appellant or to the
Inquiry Officer. We have gone through the original records supplied by the
University. Even therein, we find no list of witnesses or list of evidence
available to bring home the charges.
(Retd.)Justice 'X' who was again appointed as the Inquiry Officer
with regard to said charges, submitted a report dated 23rd February, 2010,
holding that the acts of the appellant giving an affidavit that he had no
objection towards the registration of the ACBR as a Society situated at the
said premises, and getting the Society registered without the approval of
the University of Delhi, are clearly the acts of misconduct. The relevant
extract of the inquiry report dated 23rd February, 2010 (relating to the
third chargesheet) reads as follows:
x x x x x
"The delinquent in the year 1992 was working as UGC Research
Scientist attached to the Department of Chemistry, University of Delhi. The
Executive Council of the University of Delhi in its meeting held on 15th
February, 1992 approved the setting up of B.R.Ambedkar Centre for Bio-
medical Research (in short referred to as ACBR) and the delinquent while
working as UGC Research Scientist was allowed to function as officiating
Director of ACBR vide order dated 30th May, 1995 till regular appointment
of the Director of the Centre was made. With effect from 25th June, 1996
the delinquent is serving as Professor in the Department of Chemistry,
University of Delhi, even after his appointment as Professor in the
Department of Chemistry, he continued to work as Director, ACBR till he was
relieved from the post of Professor in Chemistry to take up the appointment
of Vice-Chancellor, Bundelkhand University, Jhansi on 31st July, 1999. On
his appointment as Vice-Chancellor, Bundelkhand University, the delinquent
sought extraordinary leave with a lien in his substantive post of
Professor, Department of Chemistry to enable him to join as Vice-
Chancellor, Bundelkhand Univesity and his request was allowed by the
Executive Council of the University. On his taking over as Vice-Chancellor,
Bundelkhand Univesity, the University of Delhi vide notification dated 20th
September, 1999 appointed Prof. Vani Brahmachari as the Officiating
Director, ACBR.

In accordance with his request dated 26th July, 2002 the extraordinary
leave of the delinquent was converted into deputation service. The period
of deputation was to expire on 31st July 2005. On 13th July, 2005,
however, the delinquent came back and wrote a letter to the University that
after completing his tenure as Vice-Chancellor, he had returned back and
reported for duty as Professor, Department of Chemistry, University of
Delhi. It appears that on 18th July, 2005 itself, a news item appeared in
the newspaper according to which the delinquent was removed as Vice-
Chancellor, Bundelkhand University and the Registrar, Delhi University,
therefore, on the same day, wrote a letter to the Commissioner, Jhansi and
Principal Secretary to the Governor of Uttar Pradesh regarding the
authenticity of the newspaper report. It is the case of the University that
though the delinquent had joined his substantive post as Professor,
Department of Chemistry but he tried to clandestinely work as full time
Director, ACBR under the garb of notification dated 18th July, 2005 of ACBR
issued under the signatures of the Deputy Registrar of the said Centre. On
coming to know of the notification, a note was put up by the Registrar to
the Acting Vice-Chancellor about the same and on the same day, the
Registrar asked the Deputy Registrar, ACBR to withdraw the notification
dated 18th July, 2005 whereby the delinquent was asked to work as Director,
ACBR. In the meantime, Principal Secretary to the Governor of Uttar Pradesh
vide letter dated 26th July, 2005 informed the University confirming the
removal of the delinquent as Vice-Chancellor in pursuance of the order
dated 16th July, 2005 passed by the Governor of Uttar Pradesh in his
capacity as Chancellor, Bundelkhand University. This was pursuant to some
departmental proceedings initiated against the delinquent for his having
allegedly committed financial irregularities etc. during his tenure as Vice-
Chancellor, Bundelkhand University. The aforesaid acts of delinquent in
not informing the University that he was removed as Vice-Chancellor,
Bundelkhand University and his allegedly usurping the post of Director,
ACBR were considered to be acts of misconduct by the University and
memorandum dated 2nd November, 2005 was, accordingly, issued to him to show
cause why disciplinary proceedings be not initiated against him. Not being
satisfied with the reply of the delinquent, the University decided to hold
an inquiry and appointed the undersigned as the Inquiry Officer. In the
said inquiry it was held that the delinquent had concealed the fact of his
removal from the post of Vice-Chancellor, Bundelkhand University with a
view to mislead the University and that despite his not being Director,
ACBR, he continued to describe as founder Director or Director, ACBR with a
view to give a misleading impression."

x x x x x

"By their unauthorized acts, the Governing Body as well as the delinquent
had illegally attempted to convert a University-maintained institution into
a registered society and its building as registered office of the society.
Out of the signatories to the memorandum of association of the society, it
is only the delinquent who is under the employment of the University and
disciplinary proceedings can, therefore, be initiated only against the
delinquent. In any case it cannot be the defence of the delinquent that no
action can be initiated against him as no action is taken against other
signatories to the memorandum of association of the society. It is only the
delinquent who has given a wrong affidavit with a view to mislead the
authorities. The delinquent knowing fully that he was not the Director,
ACBR at the relevant time as he was not appointed to the said post in
accordance with Ordinance XX of the Ordinances of the University of Delhi
and there were already incumbents on the post, there was no occasion for
him to describe himself as Director, ACBR. It was totally illegal and
unjustified on his part to get a society registered even on the basis of
the resolutions of the Governing Body and describe the building where
ACBR is located as his office as his office and to convert it into the
registered office of the society. The delinquent could not, in any manner,
give an affidavit that he had no objection if the registered office of the
society is situate at the premises where ACBR was located. The delinquent
was only a Professor in the Department of Chemistry and he was not
authorised to give any such affidavit by the University or even by the
Governing Body to depose that the premises where the registered office was
proposed to be situated was "his premises", I am, therefore, firmly of the
opinion that all these acts of the delinquent giving an affidavit that he
had no objection if the registered office the society was situated at the
said premises and getting the society registered without the approval of
the University of Delhi are clearly the acts of misconduct. Charges against
the delinquent stand proved."

After supplying a copy of the inquiry report to the appellant for his
response, the University issued impugned memorandum dated 26th March, 2010
holding that the charges against the appellant are grave and the same are
in a way an attempt to challenge the powers of the Executive Council with
regard to the general control and supervision of the ACBR, as an
institution established and managed by the University of Delhi under
Ordinance XX(6) of the University. It was further held that such acts
amounts to gross misconduct on the part of the appellant and the same is
unbecoming of a teacher of the University and thereby disengaged the
appellant, with immediate effect, in terms of Para 6 of Annexure to
Ordinance XI of the University. Relevant portion of the order of punishment
and memorandum dated 26th March, 2010 reads as follows:
"And whereas the Council, vide its above resolution, noted that the charges
leveled against Prof. Ramesh Chandra are grave and the same are in a way an
attempt to challenge the powers of the Executive Council with regard to the
general control and supervision of the Dr.B.R.Ambedkar Centre for
Biomedical Research, as an institution established and manage-University of
Delhi under Ordinance XX(6) of the University, are acts of gross misconduct
on his part and unbecoming of a teacher of the University.

And whereas the Executive Council further resolved that the services of
Prof. Ramesh Chandra (under suspension), as Professor in the Department of
Chemistry be disengaged, with immediate effect, in terms of clause 6 of
Annexure to Ordinance XI of the University for his grave misconduct.

And therefore, the services of Prof. Ramesh Chandra (under suspension) as
Professor in the Department of Chemistry, University of Delhi stand
disengaged, with immediate effect, in terms of clause 6 of Annexure to
Ordinance XI of the University.

A copy of the Executive Council Resolution No.281 dated 25.3.2010 is
enclosed herewith.

Encl: As above(2 pages).
Registrar."

21. In the inquiry report, the background of appointment of the appellant
since 1992 has been referred, though it had no connection with charges. No
such fact or evidence was brought regarding the background history of the
appellant was mentioned in the (third) chargesheet nor any such evidence is
on record produced by the University.
The Inquiry Officer noticed the letter of the Principal Secretary of the
Governor of Uttar Pradesh (Chancellor, Bundelkhand University) dated 28th
July, 2005 confirming the removal of the appellant as the Vice-Chancellor
of the University and the order dated 16th July, 2005 passed by the
Governor of U.P. in his capacity of Chancellor, Bundelkhand University
though it was not part of the charges nor such evidence was cited in the
imputed charges or list of evidence.
Similarly, though the memorandum dated 2nd November, 2005 or allegation
levelled therein was not the part of the third chargesheet nor cited as
evidence by the University, the same were also relied upon.
Influenced by the aforesaid extraneous facts and consideration, which are
not the part of the chargesheet or the evidence cited by the University and
without intimating such facts to the appellant the Inquiry Officer held the
appellant guilty.
22. It appears from the record that the ACBR was established within the
premises of Delhi University on an initiative by the Central Government
according to the proposal submitted by the appellant. The appellant being
Director of ACBR, acted in terms of decision of Governing Body of ACBR,
towards making the ACBR autonomous within the premises of University. In
view of clash of interest between the officials of the University and the
ACBR, one or other action appears to have been taken against the appellant,
as apparent from the memorandum of punishment dated 26th March, 2010, as
quoted below:

"And whereas the Council, vide its above resolution, noted that the charges
leveled against Prof. Ramesh Chandra are grave and the same are in a way an
attempt to challenge the powers of the Executive Council with regard to the
general control and supervision of the Dr.B.R.Ambedkar Centre for
Biomedical Research, as an institution established and manage-University of
Delhi under Ordinance XX(6) of the University, are acts of gross misconduct
on his part and unbecoming of a teacher of the University."

23. We are not concerned about the bias as alleged against the 2nd
respondent- Prof. Deepak Pantal, Ex-Vice Chancellor as it was not accepted
in the first round of litigation.
However, action of the University can be held to be mala fide and illegal
for the reasons as detailed below.
24. Though there was no allegation leveled against the appellant in the
(third) chargesheet that he attempted to challenge the powers of the
Executive Council with regard to the general control and supervision of the
ACBR, as an institution established and managed by the University of Delhi
but such charge was held to be proved by memorandum dated 26th March, 2010,
as noticed and quoted above.
25. Further one 'note' given by the Registrar and approved by the Vice-
Chancellor in regard to the departmental inquiry being relevant, it is
desirable to refer and discuss the same.
The original 'note' relating to engagement of a retired Judge of the
High Court for conducting inquiry was given by Registrar of the University
on 3rd April, 2007. From the said note dated 3rd April, 2007 as approved by
the Vice-Chancellor, we find that Justice 'X' a retired Judge of the Delhi
High Court was appointed as the Inquiry Officer to conduct the Departmental
Inquiry against the appellant as prior to his elevation to High Court as a
Judge, he was the counsel for the Delhi University. The relevant portion of
the note reads as follows:
"Justice 'X' (name changed), retired Judge of Delhi High Court had, prior
to the elevation to High Court as a Judge, handled Delhi University cases.
He is well versed with the Delhi University Acts, Statutes and Ordinances."

It was in this background the University decided to engage him as Inquiry
Officer.
26. We are of the opinion that if an Hon'ble retired Judge of a Court
before his appointment as a Judge was a lawyer of any of the party (Delhi
University herein), the Disciplinary Authority should not engage such
retired Judge as an Inquiry Officer, as the other party may allege bias
against the Inquiry Officer and the reputation of the Hon'ble Judge may be
at stake.
The University is directed not to engage any Hon'ble retired Judge of any
Court, who was earlier a counsel of the University as an Inquiry Officer to
hold an inquiry against any of its employee.
27. The Inquiry Officer herein being a retired Judge of the High Court is
a person of vast legal acumen and experience. The Presenting Officer also
would be a person who had sufficient experience in presenting case before
Inquiry Officer. In this background, it is also required to consider
whether an application of a delinquent employee seeking permission to be
represented through a legally trained and qualified lawyer should be
allowed or not.
28. In Board of Trustees of the Port of Bombay vs. Dilipkumar
Raghvendranath Nandkarni and others, (1983) 1 SCC 124, this Court observed:

"10.......Now if the rules prescribed for such an enquiry did not place an
embargo on the right of the delinquent employee to be represented by a
legal practitioner, the matter would be in the discretion of the Enquiry
Officer whether looking to the nature of charges, the type of evidence and
complex [pic]or simple issues that may arise in the course of enquiry, the
delinquent employee in order to afford a reasonable opportunity to defend
himself should be permitted to appear through a legal practitioner.......

12.........In our view we have reached a stage in our onward march to fair
play in action that where in an enquiry before a domestic tribunal the
delinquent officer is pitted against a legally trained mind, if he seeks
permission to appear through a legal practitioner the refusal to grant this
request would amount to denial of a reasonable request to defend himself
and the essential principles of natural justice would be violated......"

29. In J.K. Aggarwal v. Haryana Seeds Development Corporation, (1991) 2
SCC 283, this Court held that the denial of the assistance of a legal
practitioner in inquiry proceedings would be unfair. This Court held as
follows:

"8. It would appear that in the inquiry, the respondent-Corporation was
represented by its Personnel and Administration Manager who is stated to be
a man of law. The rule itself recognises that where the charges are so
serious as to entail a dismissal from service the inquiry authority may
permit the services of a lawyer. This rule vests a discretion. In the
matter of exercise of this discretion one of the relevant factors is
whether there is likelihood of the combat being unequal entailing a
miscarriage or failure of justice and a denial of a real and reasonable
opportunity for defence by reasons of the appellant being pitted against a
presenting officer who is trained in law. Legal Adviser and a lawyer are
[pic]for this purpose somewhat liberally construed and must include
"whoever assists or advises on facts and in law must be deemed to be in the
position of a legal adviser". In the last analysis, a decision has to be
reached on a case to case basis on the situational particularities and the
special requirements of justice of the case. It is unnecessary, therefore,
to go into the larger question "whether as a sequel to an adverse verdict
in a domestic enquiry serious civil and pecuniary consequences are likely
to ensue, in order to enable the person so likely to suffer such
consequences with a view to giving him a reasonable opportunity to defend
himself, on his request, should be permitted to appear through a legal
practitioner" which was kept open in Board of Trustees of the Port of
Bombay v. Dilipkumar8. However, it was held in that case (SCC p. 132, para
12)
"... In our view we have reached a stage in our onward march to fair play
in action that where in an enquiry before a domestic tribunal the
delinquent officer is pitted against a legally trained mind, if he seeks
permission to appear through a legal practitioner the refusal to grant this
request would amount to denial of a reasonable request to defend himself
and the essential principles of natural justice would be violated...."

30. In view of the law laid down by this Court, we are of the view that
if any person who is or was a legal practitioner, including a retired
Hon'ble Judge is appointed as Inquiry Officer in an inquiry initiated
against an employee, the denial of assistance of legal practitioner to the
charged employee would be unfair.
31. For the reasons aforesaid, we hold that all the Departmental
inquiries conducted against the appellant were in violation of rules of
natural justice. This apart as the third inquiry report is based on
extraneous facts and first part of the charge held to be proved in
memorandum dated 26th March, 2010 being not the part of the charges shown
in the (third) chargesheet, the order of punishment, including Resolution
by memorandum dated 26th March, 2010 cannot be upheld.
32. For the reasons aforesaid, we set aside both penal memoranda dated
22nd February, 2010 and 26th March, 2010. In effect, the appellant stands
reinstated to the post of Professor but in the facts and circumstances, we
allow only 50% of back wages (salary) to appellant for the intervening
period i.e. from the date of his disengagement till the date of this
judgment. However, the aforesaid period shall be treated 'on duty' for all
purposes including seniority, increment, fixation of pay, retrial benefits,
etc. The respondents are directed to pay the appellant arrears within two
months, failing which they shall be liable to pay interest @ 6% from the
date of this judgment.
33. The appeal is allowed with aforesaid observations and directions. No
costs.

.................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)

.................................................J.
(C.NAGAPPAN)
NEW DELHI;
FEBRUARY 06, 2015.

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41

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Friday, February 6, 2015

if any person who is or was a legal practitioner, including a retired Hon'ble Judge is appointed as Inquiry Officer in an inquiry initiated against an employee, the denial of assistance of legal practitioner to the charged employee would be unfair.