1. The petitioner by this petition prays for the relief to declare the resolution dated 29.07.2012 of syndicate of respondent University (Annexure G) and the order of suspension of July 2002 as illegal.
2. It appears that when the petition was entertained on 14.08.2002, the following order was passed :
“ 1. The petitioner is working as a Reader and Head of Department of Ras Shastra and Bhaishajya Kalpana with Shri Gulabkunverba Ayurved College, Jamnagar. He initially came to be appointed as a Lecturer in the year 1978 and came to be appointed as Reader in the year 1981. He has approached this Court against an order of suspension issued by the respondent on basis of a decision taken by the Syndicate in its meeting dated July, 29, 2002. The order came to be passed on July 30, 2002.
2. According to the petitioner, the order was not served on him till he approached this Court. However, what transpires is that the order was served by substituted service by pasting the same on the door front of his house.
3. The resolution of the Syndicate indicates that the matter is serious and then it was resolved to cancel the letter dated 06.06.1973, it being really illegal and contrary to rules. It was resolved that, as there is prima facie evidence of cheating the University and of having produced false facts by Mr. K.K. Jhala (the petitioner), he be suspended from service. It was resolved by the Syndicate to appoint a High Power Committee to inquire into the chapter against him and others who may be involved and to take appropriate steps. It was resolved to initiate criminal proceedings considering seriousness of the incident and that Registrar should lodge complaint as well as Caveat Applications in the Courts at Junagadh and the High Court.
It was further resolved by the Syndicate that as there was possibility of tampering with records and witnesses, the delinquent (petitioner) be prohibited from entering the University Campus except for the purpose of attending the inquiry proceedings. It was also resolved to take steps to get the quarter vacated by the petitioner.
3.1 The order of suspension indicates that it was found that the petitioner has cheated the University regarding his birth date and has given false details and, thereby, he is, prima facie, found to have been involved in a criminal offence and is, therefore, suspended from service with immediate effect. It was stated in the order that because there was possibility of his tampering with the evidence, he is prohibited from entering the University Campus except for attending the Inquiry and that he should vacate the quarter till final decision on the departmental inquiry is arrived at. An Inquiry Committee consisting of one Chairman, two Members and one Secretary was appointed.
4. The petitioner has approached this Court praying for a declaration to the effect that the resolution of the Syndicate dated 29.7.2002 and the consequential order of suspension as illegal, unconstitutional and void, with a further direction not to implement the said order. The interim relief in terms of paragraph 19.B is sought to stay and suspend the operation and implementation of the resolution and the consequential order.
5. The main contentions raised before the Court by the petitioner are that the resolution and the order suffer from the defect of nonapplication of mind and malice. The action is mala fide and initiated with ulterior motive of depriving the petitioner of contesting ensuing Senate election. It is also contended that the petitioner's career is brilliant and blotless. Nothing is alleged to have been done by him after his entering the service. What is alleged to have been done was something which is done by the University while the petitioner was a student. All that can be alleged is that he had made an application for change in birth date which came to be accepted by the University, which could not have been legally acceded to by the University and the University could not have made the changes and, that too, has been done almost 29 years back in the year 1973. It is, therefore, contended that suspension is uncalled for, is without any basis and the resolution and order are, therefore, without application of mind. It is contended that the whole proceedings are initiated at the behest of a particular person, who is member of the Senate, who is member of the Syndicate, who is appointed as member of the Inquiry Committee and, therefore, the proceedings suffer from legal malice.
6. Learned Advocate Mr. Joshi appearing for the petitioner has emphasized the above contentions and tried to derive support from the documents produced on record.
7. The petition is opposed to by the respondent, represented by learned Senior Counsel Mr. Nanavati, appearing with learned Advocate Mr. Popat. The case of the other side is that the petitioner has got his birth date changed only on basis of his own affidavit, which is legally not permissible. It was noticed in the month of March 2002 that the birth date recorded on the first page of the service book of the petitioner was not verified and the petitioner was, therefore, called upon to furnish his School Leaving Certificate or SSC Certificate. Instead of supplying those documents, the petitioner insisted upon the respondent to accept a letter issued by the respondent on 6.6.1973. The respondent was, therefore, required to explore its record and found that the change in birth date was effected only on basis of an affidavit sworn before a Judicial Magistrate by the petitioner. According to the respondent, that cannot be legally done and, therefore, the change was not legal. The change in birth date would extend the date of superannuation of the petitioner and, thereby, the petitioner would derive undue benefits. The petitioner holds a responsible position in the University as a Reader and it is expected of him to cooperate with the administration and render correct birth date. His continuance in the office would have hampered the working of the respondent. It is submitted by learned Senior Counsel Mr. Nanavati that, on inquiry from the office information was received that the records are not available, which indicate the possibility of the petitioner having used his office to cause the disappearance of such record and, therefore, his suspension is deemed proper. It was also contended that it is the inherent right of an employer to suspend an employee and that, in such situations, Courts should be slow in interfering with such orders. Several decisions have been sought in support of these contentions.
7.1 It was contended that the respondent never had any mala fide or malice against the petitioner. It was only with a view to straighten the service record of the petitioner that proof of birth date was sought. The letter of the University dated 6.6.1973 is the creation of the petitioner and that there is no question of preventing the petitioner from contesting the Senate election. There is no question of disqualifying the petitioner on account of such proceedings. In fact, the whole chapter started in the month of March 2002 when elections were not declared and it is only an imaginary malice that is projected by the petitioner and, therefore, the Court may not interfere with the order.
8. In order that the contentions raised by the parties can be properly appreciated, certain facts, which are not in dispute, need to be stated in chronology :
(1) In the year 1973, the petitioner was a student of the respondentUniversity. It appears that, at that point of time, he gave an application for changing his birth date from February 26, 1947 to February 26, 1951. It also appears that the said application was supported by an affidavit. On basis of that application, the University effected necessary changes in its records and changed the birth date of the petitioner from February 26, 1947 to February 26, 1951. A communication dated 06.06.1973, in this regard, was addressed to the Principal, Ayurved Mahavidyalay, Jamnagar, signed by the incharge Deputy Registrar of the respondent, informing that the birth date of the petitioner is changed as such in the enrolment register.
(2) After about five years, the petitioner came to be appointed as a Lecturer in the College on January 4, 1978. At that point of time, the date of birth is registered as February 26, 1951 and since then, there has been no change.
(3) After initial appointment as Lecturer, the petitioner, ultimately, got promotions and has attained the position of Reader and Head of the Department, as stated above, and is working as such. It is not in dispute that during the service of the petitioner, there has not been anything adverse against him. It appears that he has been a member of the Senate and has also contributed to the field, as can be seen from various opinion and testimonials issued by the Principal of the college.
(4) It also appears that annual meeting of the Senate of the University was held on 8th March, 2002, wherein some questions were put by one of the Senators regarding he date of birth of the petitioner and the change made therein. Questions were also put as to whether requisite documents were supplied at the time of making change or not by the petitioner and, if not, whether any action was taken. This transpires from AnnexureC. It appears that on July 27, 2002, election of the Senate of the University for the term 20022007 came to be declared and it also appears that on 29th July, 2002, the resolution in question came to be passed by the Syndicate.
(5) It is also not in dispute that the Senator who raised the question of birth date of the petitioner in the annual meeting is a member of Syndicate and was present in the meeting of the Syndicate when the resolution in question was passed. It is also not in dispute that the same Senator is made a member of the Inquiry Committee constituted to inquire into the question.
9. At the outset, it may be noted that, at this stage, the Court is required to consider only the question of interim relief and, therefore, whatever observations are made herein are only prima facie and not conclusive and are made only with a view to decide the question whether interim relief has to be granted or not.
10. The petitioner has alleged mala fides as well as legal malice. So far as mala fides are concerned, they are in the form of an allegation that a Senate Member taking interest in initiating the entire chapter with a view to prevent the petitioner from either contesting the election or succeeding at the election. It is vehemently contended by the respondent that since that Senate Member is not made a party here, it would not be proper for this Court to enter into that question. There is justification in the contention raised by the respondent and this Court is not inclined to enter into that question in absence of that Senate Member.
11. Another factor that is contended is legal malice in the sense that it is the same member who initiates the entire chapter by putting questions in the annual meeting of the Senate, he is also a member of the Syndicate and it is he who becomes the member of the Inquiry Committee and, therefore, it is contended that the petitioner's interest may be jeopardized because of bias. This, certainly, can be a relevant factor which has to be given its due weightage.
12. Apart from this alleged legal malice, there are certain other factors which call for attention.
12.1 The petitioner's career as a Lecturer, Supervisor or Reader and Head of Department has been blotless and has rendered good services to the institution, as can be seen from the record. Nothing is alleged against him either about any moral turpitude or involvement in other malpractices. There is no allegation of any dereliction of duty. The foundation for action against him is that letter dated 6.6.1973 is illegal and contrary to the rules. All that is stated is that there is, prima facie, material to show that mischief is played with the interest of the University and that is how the University is cheated and, therefore, the petitioner, who presented wrong facts, is required to be suspended. Prima facie, therefore, it is clear that the incident of 1973 has nothing to with the service of the petitioner or his duties. What is considered illegal and against the rule is the letter of 6.6.1973, which is written by incharge Deputy Registrar of the University. What can be stated at the most is that the petitioner had tendered an application, as a student for change of birth date supported by an affidavit, which came to be accepted by the University illegally and against the rules, for which the petitioner cannot be saddled with such a responsibility that his suspension can be said to be necessary. If it was not in accordance with the rules, that application could have been rejected at that point of time. Acceptance or nonacceptance was within the hands of the office bearers of the University at that point of time and the petitioner had not conrol or power or authority, he being a sudent only, to have his application accepted. The petitioner was only a student who had made an application, may be wrongly. It would also be too remote to think that, at that point of time, it was done with an ulterior motive of causing damage to the interest of the University anticipating appointment of the petitioner as a Lecturer, which was made, for the first time, in 1978, i.e. almost after five years and, therefore, the resolution of the Syndicate and the consequential order, prima facie, indicate either nonapplication of mind or extraneous considerations, whatever they may be.
13. It also requires to be noted that, it is true that the petitioner has not supplied the requisite document that he was called upon to supply. But communication produced along with the affidavitinreply clearly indicate that there was no hiding of the fact that his birth date was changed in the year 1973 and that his former date of birth is February 26, 1947.
14. To draw an inference that because records of 1973 are not available, they have been caused to be disappear at the behest of the petitioner or by misuse of office by the petitioner, can be said to be nothing but presumption or surmise not based on any legitimate inference, leave aside a proof or material. For this purpose, the time lag of 29 years has to be kept in mind and, there again, this aspect emerges only in affidavitinreply and finds no place either in the resolution of the Syndicate or in the order of suspension and, therefore, there is reason to believe that it is a defence subsequently thought of. Under these circumstances, in the opinion of this Court, the order of suspension, prima facie, appears to suffer from the vice of nonapplication of mind as well as consideration of extraneous factors. The 'legal malice' alleged indicates involvement of same person at various stasges also cannot be overlooked. Such orders cannot be permitted to stand, even if the Court is required to grant a mandate.
15. Several judgments have been cited on behalf of the respondent to show that the Court may not enter into the sufficiency or insufficiency of grounds for order of suspension and may not interfere. Judgments are shown to indicate that it is right of an employer to suspend an employee and Court may not interfere in such orders of suspension. It was indicated that employer has inherent powers to place an employee under suspension, pending disciplinary action against the employee.
15.1 The citations are as under :
(1) R.G. Jadeja v. P.K. Bansal, 1993(2) GLR, 1077.
(2) State of Orissa v. Bimal Kumar Mohanty, (1994) 4 SCC, 126.
(3) Kaushik T. Patel v. Gujarat Water Resources Development Corpn. Ltd., 1996(2) GLH 838.
(4) B. C. Nikam v. District Development Officer, Surat & Anr., 2000(1) GLH 256.
(5) Babubhai Ramjibhai Desai v. State of Gujarat & Ors., 2000(2) GLR, 1752.
(6) Gujarat Agricultural University & Anr. v. Bhupendrasinh T. Rathod & Anr., 2000(4) GLR, 2805.
(7) B.R. Kakar v. Institute of Plasma Research and Ors., 2000(3) GLH 37.
(8) Council for Indian School Certificate Examination v. Isha Mittal and Another, (2000) 7 SCC, 521.
(9) Punjab National Bank v. D.M. Amarnath, (2000) 10 SCC 162.
16. There cannot be any dispute about the propositions of law laid down in the above judgment, that an employer has a right to suspend an employee, pending departmental proceedings and the Court should be slow in interfering with such orders. While considering such questions, the Court may not enter into the question of sufficiency or insufficiency of grounds. But the Courts are not rendered powerless in interfering with orders of suspension, if they are found to have been passed either with mala fides or in consideration of extraneous material/factors or are passed without application of mind. In the instant case, as discussed above, the Senate, while taking the decision, has not considered the factor that the letter of 6.6.1973 is written by the University and if it is illegal or against the rules, it is the office bearer of the University who is responsible for writing that letter and not the petitioner. If the change in birth date is made against the provision of rules, it is the office bearer of the University who is responsible for making the change because the petitioner had no access or power to make a change at the relevant time as he was only a student then. The Syndicate has also not considered the fact that, at that point of time, there could not have been any intention of causing damage to the interest of the University, as is considered and recorded in the resolution and, therefore, this reflects either nonapplication of mind or consideration of extraneous material.
16.1 It would also be appropriate to note that through out the career of the petitioner, there has not been any occasion of any adverse remarks or action against the petitioner, which has also not been considered.
16.2 The contention that nonfinding of the record may have some nexus with the misuse of office by the petitioner emerges, for the first time, in the affidavitinreply.
16.3 Apart from this, the decision not to permit the petitioner to enter the campus of the University and to ask him to vacate the quarters, prima facie, reflects very much on the attitude or stand of the Syndicate towards the petitioner.
17. For the foregoing factors, this Court is inclined to interfere with the order of suspension by granting interim relief in favour of the petitioner in the form of suspension of operation of order of suspension issued by the Registrar dated July 30, 2002 (Annexure "R8"), suspending the petitioner, preventing him from entering the campus of the University and requiring him to vacate the residential quarters, The said order, therefore, stands suspended till final disposal of this petition.
18. Learned Advocate Mr. Popat, at this stage, prays for stay of operation of this order for three weeks. The request is refused in view of the above observations made in respect of the order challenged in the petition.”
3. When the matter is taken up for final hearing, the learned counsel appearing for both the sides have brought to the notice of the Court that the very petitioner subsequently has preferred SCA No.7037/05 and the said petition is pending. In the said matter also the order dated 20.04.2005 was passed by this Court, whereby the interim relief was granted against the respondent University directing to continue the petitioner in service until final disposal of the petition or until 30th April 2009 whichever is earlier.
4. Under these circumstances, it appears that when subsequent petition is filed by the petitioner being SCA No.7037/05 and the present petition was limited to the question of suspension which ultimately has resulted into conclusion of the inquiry and the further orders which is subject matter of SCA No.7037/05, the petitioner can agitate the questions raised in the subsequent petition including that for the entitlement of the salary or otherwise, if not paid during the period when suspension order was in operation, but stayed by this Court.
5. Under these circumstances, the present petition is disposed of with the observation that the rights and contentions of both the sides in SCA No.7037/05 shall not be prejudiced by the disposal of the present petition and it will be open to both the sides to agitate the questions as may be available in law in the proceedings of SCA No.7037/05.
6. The present petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.
*bjoy (JAYANT PATEL, J.)