Vice-Chancellor, Jammu University
& ANR Vs. Dushiant Kumar Rampal [1977] INSC 65 (23 February 1977)
BHAGWATI, P.N.
BHAGWATI, P.N.
GUPTA, A.C.
SHINGAL, P.N.
CITATION: 1977 AIR 1146 1977 SCR (3) 43 1977
SCC (2) 616
ACT:
J & K Universities Act, 1969--SS. 13(4),
51, 52 and statue 24(ii)-Scope of--Vice-Chancellor--If competent to suspend a
teacher--Suspension--Effect of.
HEADNOTE:
The Jammu and Kashmir University, which was a
university constituted under the Jammu and Kashmir University Act, 1965, was bifurcated
into two universities-one for Jammu area and the other for Kashmir area--by an
act called the Jammu and Kashmir Universities Act, 1969. Statute 2 made under
the 1965-Act required every teacher to sign the prescribed agreement of service
with the University. Clause (6) of the agreement stipulated that in all matters
the teacher would abide by the statutes and regulations in force in the
university from time to time. The proviso to this clause provided that no
change in the statutes and regulations in this regard shall be deemed to have
adversely affected the teacher.
Section 51 of the 1969-Act provides for
continuing in force the statutes and regulations made under the 1965-Act;
but s. 48(2) empowered a special officer to
propose modifications necessary to bring the statutes made under the 1965Act in
conformity with the provisions of the 1969-Act and if such modifications were
approved by the Chancellor they were deemed to have been made by the competent
authority under the 1969-Act. Section 52(1) of the 1969-Act provides that all
employees of the university employed under the 1965-Act shall continue in
service on the same terms and conditions as regulated their service before the
commencement of the 1969-Act. Sub-section (2) empowers the Chancellor to
allocate employees of the university (other than those serving on contract)
between the two new universities and the allocation so made was deemed to be an
appointment to the post under the 1969-Act. The proviso to this subsection
provides that in making such allocations the conditions of service of
employment of such employees shall not be: varied to their disadvantage.
Sub-section (4) provides that all persons who were employed under the former
university on contract shall cease to hold such posts after 60 days from the
commencement of the 1969-Act and all such contracts with the former university
shall stand terminated on the expiry of 60 days.
Section 13(4) of the 1969 Act empowers the
Vice-Chancellor to take such action as he deems necessary in any emergency
which calls for immediate action. Section 13(6) provides that the
Vice-Chancellor shall be responsible for the discipline of the University.
Section 14(3) of the 1969-Act contained an identical provision as that
contained in s., 13(4) of the 1965-Act.
To bring the statutes under the 1965-Act in
conformity with the provisions of the 1969-Act modifications proposed by the
special officer under s. 48(2) of the 1969-Act were approved by the Chancellor
by his order dated December 24, 1969. This order substituted Chapter IV in the
statutes by a new chapter.
Acting under s. 52(4), the Chancellor made an
order on December 24 1969 directing that certain teachers shall continue on the
respective posts in the new Universities on the terms and conditions embodied
in Schedule II to the order. Clause 9(ii) of the Schedule empowered the Vice-Chancellor
to suspend a teacher on grounds. among others of misconduct.
The respondent, a teacher appointed under
the. 1965-Act, was transferred to the Jammu area by the Chancellor's order
dated December 24, 1969. In exercise of the power under el. 9(ii) of Schedule
II of the Chancellor's order 44 and s. 13(4) of the 1969-Act, the
Vice-Chancellor, by an order dated May 21, 1970, suspended the respondent from
service. By another order dated June 6, 1970 the respondent was allowed a
subsistence allowance amounting to half his pay and half D.A. which was later
raised to 75% of his pay and allowances.
The respondent's writ petition under Art. 226
of the Constitution challenging the suspension order of May 21, 1970, as well
as the order dated June 6, 1970 was dismissed by a single Judge of the High
Court. On appeal the Division Bench struck down the order of suspension as
violative of s.
52(1) of the 1969-Act.
In appeal it was contended by the respondent
that (1) since his case was governed by s. 52(1) the order of December 24, 1969
made under s. 52(4) was invalid because the terms and conditions set out in
Schedule H to the order altered his conditions of service; (2) statute 24(ii)
was invalid because it was not within the terms of s. 48(2) and the statute was
not necessary for bringing the statutes in conformity with the provisions of
the 1969-Act; (3) the power to order interim suspension was a quasi-judicial
power and it would not be comprehended within the language of s. 13(4) and (4)
s. 52(1) entitled him to continue in service on the same terms and conditions
as before and under s. 52(2) his conditions of service could not be varied to
his disadvantage; therefore neither statute 24(ii) nor s. 13(4) could confer
power on the Vice Chancellor to suspend him which power the Vice-Chancellor did
not have under the earlier Act.
Allowing the appeal,
HELD: The Vice-Chancellor had the power to
make the order of suspension and he was within his authority in doing so.
1. By reason of statute 2 read with el. (6)
of the form of agreement the respondent was bound by any changes made, in the
statutes from time to time and no change made in the statutes was to be
regarded as having adversely affected him. Statutes made under the 1965-Act
continued to be applicable by reason of s. 51. To bring the statutes in
conformity with the provisions of the 1969-Act, modifications proposed by the
special officer were approved by the Chancellor by his order dated December 24,
1969 and by reason of s. 48(2) they were deemed to have been made by the
competent authority under the 1969-Act. This order substituted Chapter IV in
the Statutes by a new Chapter and statute 24(ii) made the same provision as el.
9(ii) of Schedule II to the order made under s. 52(4). If statute 24(ii) were a
valid provision, the Vice-Chancellor would have power to suspend a teacher and
the order of suspension against the respondent would be within the authority of
the Vice Chancellor. [53D-E] Statute 24(ii) iS a statute validly approved by
the Chancellor under s. 48(2). [54H] 2(a) Section 13(6) has entrusted the
Vice-Chancellor with the task of maintaining discipline in the university and
the entrustment of this task carried with it, by necessary implication, the Viewer
to take whatever action was necessary for maintaining the discipline. Since s.
13(6) was a new provision, it was necessary to make statutes for enabling the
Vice-Chancellor to discharge the responsibility of maintaining the discipline
and for that purpose, vesting power in him to suspend a teacher pending
departmental enquiry against him. It was with this object of bringing the
statutes in conformity with s. 13(6) that statute 24(ii) was added by way of
modification in the statutes by the order of December 24, 1969. Moreover, there
is nothing in the 1969-Act which militates against vesting power in the
Vice-Chancellor to order interim suspension of a teacher.
The ChancellOr's view that statute 24(ii) was
necessary to bring it in conformity with s. 13(6) cannot be said to be
erroneous. [54F-G] (b) If statute 24(ii) is valid, the respondent would be
bound by it and in that event the order of suspension made by the
Vice-Chancellor would be within the power conferred on him by that statute.
[55B] (c) Though the order of suspension did not recite statute 24(ii) it is
well settled that when an authority makes an order which is otherwise within
its competence, it cannot fail merely because it purports to be made under a
wrong 45 provision of law, if it can be shown to be within its power under any
other provision; a wrong label cannot vitiate an order which is otherwise
within the power of the authority to make it. [55B-C] P. Balakotaiah v. Union
of India, [1958] S.C.R. 1052 followed.
3(a) It is not correct to say that an order
of interim suspension was a quasijudicial order and in any event the language
of s. 13(4) is sufficiently wide and comprehensive to take within its scope and
ambit every kind of action considered necessary by the Vice-Chancellor in an
emergency.
The order of suspension. made by the
Vice-Chancellor was plainly an order which he had the power to make under s. 13(4).
[55F] (b) Section 13(4) does not talk specifically of an order of interim
suspension of a teacher but the width and amplitude of the language of the
provision would clearly include action by way of interim suspension of a
teacher, when there is in the opinion of the Vice-Chancellor, an emergency
calling for immediate action. [55E] (c) The respondent's contention that there
was no emergency which called for immediate action on the part of the
Vice-Chancellor and, therefore, the order of suspension could not be justified,
cannot be entertained by this Court because no such averment had been made in
the writ petition.
[55H] 4(a) The respondent could not complain
of any infraction of the provisions of s. 52(1). Since statute 24(ii) was a
statute validly made the Vice-Chancellor was entitled to make the order of
suspension. The Vice-Chancellor could also avail of s. 13(4) for sustaining the
order of suspension since it conferred the same power on him as s. 13(4) of the
1965-Act and exercise of the power conferred by it as against the respondent
did not involve any violation of the provisions of s. 52(1). [57D-E] (b)
Section 52(1) continued the service of a teacher on the same terms and
conditions as regulated his service before the commencement of the 1969Act and
that was subject to the provisions of s. 52(2). But this subjection to the
provisions of sub s. (2) did not import the requirement set out in the proviso
that the conditions of service of a teacher shall not be varied to his
disadvantage. The words "subject to the provisions of sub-section (2)"
in s. 52(1) were intended merely to clarify that a teacher shall continue in
service on the same terms and conditions but subject to any allocation which
may be made by the Chancellor under s. 52(2). Nothing in sub-s. (1) should be
construed as in any way derogating from the power of the Chancellor to make an
allocation of the teacher under s. 52(2). The proviso imposed a limitation on
the power of the Chancellor to make an allocation by providing that in making
such allocation the conditions of service of the employee shall not be varied
to his disadvantage and it could not be construed as a substantive provision
adding a requirement in sub-s.(1) that even though the terms and conditions of
service may permit alteration to the disadvantage of an employee, such
alteration shall be inhibited. [56H; 57A] (c) Even if the respondent was
entitled to continue in service on the same terms and conditions as before by
reason of s. 52(1) these very terms and conditions provided that he would be
bound by any changes which might be made in the statutes from time to time. If,
therefore, any changes were made in the terms and conditions of service of the
respondent by statutes validity made under the 1969-Act the respondent could
not complain of any infraction of the provisions of s. 52(1). [57C-D] 5(a) The
order of suspension suspended the contract between the respondent and the
university and neither the respondent was bound to perform his duties under the
contract nor was the university bound to pay any salary to him. The respondent
was entitled to receive only such subsistence allowances as might be payable
under the rules and regulations governing his terms and conditions of service.
[57G] (b) Where there is power in the employer either by an express term in the
contract or by the rules governing the terms and conditions of service to 46
suspend an employee, the order of suspension has the effect of temporarily
suspending the relation of master and servant with the consequence that the
employee is not bound to render service and the employer is not bound to pay.
In such a case the employee would not be entitled to receive any payment at all
from the employer unless the contract of employment or the rules governing the
terms and conditions of service provide for payment of some subsistence allowance.
[58H] In the instant case the Vice-Chancellor had the power to suspend the
respondent under statute 24(ii) and the respondent could not claim payment of
his salary during the period of suspension.
P. Gindroniya v. State of Madhya Pradesh,
[1970] 3 SCR 448 followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1739 of 1973.
Appeal by Special Leave from, the Judgment
and Order dated 22.10.1973 of the Jammu and Kashmir High Court in Letters
Patent Appeal No. 9/72) F.S. Nariman, O.C. Mathur, P.N. Tiwari and D.N. Mishra,
for the appellants.
Dushiant Kumar Rampal respondent. (in person)
The Judgment of the Court was delivered by BHAGWATI, J., We pronounced our
order on this appeal on 17th December, 1976 and we now proceed to give our
reasons.
We may point out that the respondent was not
represented by a lawyer and he argued case in person and though he is a lay
man, not well versed in the science of law and in the art and skill of
advocacy, we must admit that he argued his case with conspicuous ability.
Prior to 5th September, 1969 there was only
one University for the entire territory of the State of Jammu & Kashmir,
namely, the University of Jammu & Kashmir. It was constituted under the
Jammu & Kashmir University Act, 1965 (hereinafter referred to as the Act of
1965) and, as provided in section 20, its central authorities included the
Senate and the Central Council. The Central Council was the executive body of
the University and it had the power inter alia to appoint teachers and to
define their duties.
The respondent was appointed as a lecturer in
English by the Central Council on 25th April, 1966 and after his period of
probation was over he was confirmed as lecturer with effect from 29th April,
1967. The conditions of service of the respondent, like those of other
confirmed teachers, were regulated by the Statutes made by the Senate from time
to time under the provisions of Act of 196.5. Statute 2 provided that every
salaried teacher of the University shall have to execute a written contract
with the University and the conditions of service of teachers appointed by the
University shall be those embodied in the agreement of service annexed to the
Statutes and every teacher shall execute such agreement before he enters upon
his duties or as soon as possible thereafter. It appears that though Statute 2
required an agreement of service to be executed by a teacher, no such agreement
of service was executed by the respondent on his appointment as 47 lecturer.
But it was common ground between the parties that the conditions of service of
the respondent were governed by the provision set out in the form of agreement
of service annexed to the Statutes. Clause (6) of this agreement--and this
clause admittedly governed the respondent--stipulated that in all matters, the
teacher would "abide by the Statutes and Regulations from time to time in
force in the University, and in particular, by those determining his/ her
grade, increment, conditions of service, rules of superannuation and provident
fund rules, provided that no change in the Statutes and Regulations in this
regard shall be deemed to have adversely affected the teacher." The
respondent was thus clearly bound by any changes which might be made in the
Statutes from time to time and no change made in the Statutes was to be
regarded as having adversely affected the respondent and he could not complain
against it. The case of the respondent was that he satisfactorily carried on
his duties as lecturer and earned his increments from year to year.
On 5th September, 1969 the Governor of Jammu
& Kashmir promulgated Ordinance No. 10 of 1969 establishing in place of the
University of Jammu & Kashmir, two separate universities, namely, the
University of Kashmir for the Kashmir division and the University of Jammu for
the Jammu division of the State. This Ordinance was replaced by the Jammu &
Kashmir University Act, 1969 (hereinafter referred to as the Act of 1969) which
came into force on 30th October, 1969. The Act of 1969 made a slight departure
from the earlier Act in the constitution of the various authorities of each
University, Section 20 of the Act of 1969 provided that the authorities of each
university shall include the University Council and the Syndicate. The University
Council was constituted supreme authority of the university while the Syndicate
was entrusted with the chief executive authority. Whereas under the earlier
Act, the power to appoint all teachers of the University was entrusted to the
Central Council. there was bifurcation of this power between the University
Council and the Syndicate under the Act of 1969. The University Council was
given the power to appoint teachers of the status of a reader and above white
the power to appoint teachers below the status of a reader was entrusted to the
Syndicate. The Syndicate was thus the authority under the Act of 1969 vested
with the power to appoint and that power would also carry with it the power to
dismiss teachers below the status of a reader. Since the University of Jammu
& Kashmir came to an end on the repeal of the Act of 1965 and two new
universities, one of Kashmir and the other of Jammu, were established, some
provision had to be made in the Act of 1969 for continuance of the Statutes and
Regulations so that there might be no hiatus or break causing dislocation in
the functioning of the two new universities. Section 51 of the Act of 1969.
therefore.
provided that all Statutes and Regulations
made under the Act of 1965 and in force immediately before the commencement of
the Act of 1969 shall so far as may be consistent with the provisions of the
latter Act, continue to be in force in each University and section 48. sub-sec.
(2) gave power to the special officer to "examine the Statutes and Regulations
continued under section 51 of this Act and propose such modifications,
alterations and additions therein as may be necessary to bring such Statutes
and Regulations in conformity with the provisions of this Act" and
provided that the modifications, alterations and additions proposed by the
Special officer shall, if approved by the Vice Chancellor, be deemed to have
been made by the competent authority under the Act of 1969 and shall continue
in force until altered or superseded by the authority constituted under the Act
of 1969. There was also the problem of ensuring continuance of service of the
existing employees of the University of Jammu & Kashmir and their
allocation between the two succeeding universities and this problem was solved
by the enactment of section 52 in the Act of 1969. That section, in so far as
material, provided as follows:
"52. Continuance of service of the
existing employees and their allocation--Notwithstanding anything contained in
this Act or any Statute or Regulation made there under or in any other law for
the time being in force.
(1) all employees of the University of Jammu
and Kashmir constituted under the Jammu and Kashmir University Act, 1965 (other
than those serving on contract. or on deputation 'in the University or those
serving m the Publication Bureau of the University) who immediately before the
commencement of this Act, were holding or discharging the duties of any post of
office in connection with the affairs of the said University shall, subject to
the provisions of sub-section (2), continue in service on the same terms and
conditions as regulated their service before such commencement;
(2) the Chancellor may in consultation with
the pro Chancellor by order allocate the employees of the University of Jammu
& Kashmir (other than those serving on contract or deputation in the
University or those serving in the Publication Bureau of the University)
between the University of Kashmir and the University of Jammu constituted under
this Act in such manner as he may consider necessary and every such allocation
shall be deemed to b e an appointment, transfer or promotion as the case may be
to the post or office by the competent authority under this Act:
Provided that in making such allocations the
conditions of service of employment of such employees shall not be varied to
their disadvantage;
(3) x x x x x (4) all persons who immediately
before the commencement of this Act were holding or discharging the duties of
any post or office in connection with the affairs of the University of Jammu
and Kashmir, on 49 contract basis or by virtue of their deputation to such
posts or offices from other services in the State. unless otherwise ordered by
the Chancellor after consulting the Pro-Chancellor, shall cease to hold such
posts or to discharge such duties after 60 days from the commencement of this
Act and all such contracts with or deputations to he University of Jammu &
Kashmir shall stand terminated with effect from the expiry of the staid period
of 60 days." Since most of the teachers had entered into an agreement of
service with the University of Jammu & Kashmir as provided in Statute 2 and
the rest were also treated as having entered into such agreement of service by
reason of the compulsive force of Statute 2 though in fact such agreement of
service had not been executed by them, perhaps due to inadvertence, the
Chancellor took the view that all of them held their posts on contract basis
and hence, proceeding on the assumption that sub-sec. (4) of section 52 was attracted
in their case, he made an order dated 24th December, 1969' directing that the
appointments of the teachers set out in Schedule (1 ), which also included the
respondent, shall continue on the respective posts mentioned In that schedule
on the terms and conditions embodied in Schedule II with effect from 9th
January, 1970. Schedule II contained the terms and conditions on which teachers
mentioned in Schedule I were continued in service of the University of Jammu
and clause 9(ii) of that Schedule read as follows:
"The Vice-Chancellor may when he deems
it necessary suspend the teacher on grounds of misconduct, insubordination,
inefficiency or unsatisfactory performance of duty, when he suspends the
teacher he shall report it to the university Council/Syndicate at the next
meeting." The respondent and some other teachers were of the view that the
terms and conditions set out in Schedule II effected a change in their
conditions of service to their prejudice and hence they made a representation
to the Chancellor and other authorities of the University of Jammu. It does not
appear from the record as to what happened to this representation but
presumably it was rejected.
Now we come to the events which formed the
immediate cause for the predicament of the respondent. It appears that certain
complaints were received by the Vice-Chancellor against the conduct of the
respondent and the Vice-Chancellor took the view that these complaints were of
a serious character and needed to be enquired into and pending such enquiry, it
was not desirable that the respondent should be allowed to continue to work as
a lecturer. The Vice-Chancellor accordingly passed an order dated 21st May,
1970 directing that the respondent be placed under suspension with immediate
effect. This order was purported to be passed by the Vice-Chancellor in
exercise of the powers vested in him under clause 9(ii) of Schedule II of the
Order dated 24th December, 1969 and section 13 (4) of the Act of 1969. It may
be convenient at this stage, before we precede 50 further, to refer to section
13(4), since considerable argument before us turned upon it Section 13 deals
with the powers and duties of the Vice-Chancellor and sub-section (4) of that
section reads as follows:
"(4) The Vice-Chancellor may take action
as he deems necessary in any emergency which, in his opinion, calls for
immediate action. He shall in such a ease and as soon as may be thereafter,
report his action to the officer, authority or other body of the University
concerned who or which would ordinarily have dealt with the matter."
Sub-section (6) of section 13 is also material and it is in the following
terms:
"(6 ) The Vice-Chancellor shall give
effect to the orders of the University Council and the Syndicate of the
University concerned regarding the appointment, dismissal and suspension of
persons in the employment of the University and shall exercise general control
over the affairs of the University. He shall be responsible for the discipline
of the University in accordance with this Act, Statutes and Regulations."
The Vice-Chancellor, immediately after passing the Order of suspension, placed
it before the Syndicate at its next meeting held on 24th June, 1970. The
respondent had also in the meantime submitted his representation against the
Order of suspension and this representation also came up before this meeting of
the Syndicate. The Syndicate considered the Order of suspension made by the Vice-Chancellor
as also the representation submitted by the respondent and passed a resolution
rejecting the representation of the respondent recording the action taken by
the Vice-Chancellor and directing that articles of charge be framed and
communicated to the respondent and he may be required to submit his explanation
in writing and a committee consisting of the Vice-Chancellor and three other
persons be appointed to investigate the matter and submit its finding to the
Syndicate. The Registrar of the University thereafter passed ,an order dated
6th June, 1970 declaring that, during the period of suspension, the respondent
would not be entitled to get full salary but he would be paid only subsistence
allowance at an amount equal to half pay and half dearness allowance in
accordance with the usual practice followed by the University. It may be
pointed out that with effect from 21st May, 1971, that is after the expiry of a
period of one year from the date of suspension, the subsistence allowance
payable' to the respondent was raised to 75% of the pay and dearness allowance.
A charge sheet containing twelve charges was then given to the respondent and
he was required to submit his explanation. The respondent gave his explanation
to the charges leveled against him and while doing so, he also objected to the
constitution of the Committee which was appointed to enquire into the charges.
In consequence of his objection, the
constitution of the committee was changed and the Vice--Chancellor was kept out
of it. The enquiry by the Committee 51 commenced on 12th March, 19:71 and it
went on for some time, but before it could be completed, the respondent filed a
writ petition in the High Court of Jammu & Kashmir challenging the validity
of the Order dated 24th December, 1969, the Order dated 6th June, 1970 in
regard to payment of subsistence allowance and also impugning the legality of
the enquiry proceedings. There were various grounds taken by the respondent in
the writ petition but it is not necessary to refer to them in detail having
regard to the course which the appeal has taken before us. The writ petition
was heard by a Single Judge of the High Court and by a judgment dated 28th
April, 1972 the learned Judge dismissed the writ petition. The respondent there
upon preferred a Letters Patent appeal in the High Court. During the pendency of
the appeal, the departmental enquiry which was started against the respondent.
was completed and the committee made a report absolving the respondent of all
the charges except charges Nos. 1 and 12 of which the respondent was found
guilty. The syndicate, after considering the report of the committee, resolved
to issue a notice to the respondent to show cause why "the punishment for
termination of his services from the University be not imposed on him" on
the ground of charges Nos. 1 and 12. Pursuant to this resolution, a show cause
notice was issued to the respondent which led to the filing of a petition by
the respondent in the Letters Patent appeal for taking notice of these subsequent
events. The respondent in this petition challenged the report of the committee
as also the resolution of the Syndicate on various grounds which are no longer
material.
The University filed its reply to the
petition denying the allegations made against the committee and disputing the
grounds on which the validity of the enquiry was challenged on behalf of the
respondent. The Letters Patent appeal thereafter came to be heard by a Division
Bench of the High Court and the Division Bench, by a judgment dated 22nd
October, 1973, took the view that the Order dated 24th December, 1969 was
violative of section 52, sub-section (1) of the Act of 1969 and the Order of
suspension dated 21st May, 1970 was "defective for want of jurisdiction
and other legal infirmities" and these two orders were accordingly quashed
and set aside by the Division Bench. The Division Bench also held that "as
a necessary corollary to our findings on the two impugned orders and also in
consequence of our observations on the legal aspect of the show cause notice
issued to the appellant to terminate his service, the same also deserves to be
quashed." The Division Bench accordingly allowed the appeal, set aside the
judgment of the learned Single Judge and issued a writ of certiorari quashing
the Order dated 24th December, 1969 and the Order of suspension dated 21st May,
1970 as also the show cause notice issued to the respondent and directed the
reinstatement of the respondent. The University and the Vice-Chancellor
thereupon preferred the present appeal with special leave obtained from this
Court.
The appeal was heard by this Court for some
time on the points which were decided against the University and the
Vice-Chancellor and certain further points were also raised by the respondent
in support of the order made by the Division Bench of the High Court.
52 But it is not necessary to examine the
arguments advanced on behalf of the parties on these various points, since
before the hearing of the appeal could be concluded, a partial settlement was
arrived at between the University and the Vice-Chancellor on the one hand and
the respondent on the other. It was agreed between the parties as a result of
this settlement that the University should drop the disciplinary proceedings
action against the respondent and that the respondent should be allowed to join
service within fourteen days from the date of the order to be made by this
Court and upon his joining, his pay should be fixed as lecturer taking in view
the increments which he would have earned but for the suspension. It was also
declared in the settlement that there shall be no stigma whatsoever attached to
the respondent and so far as the personal allegations made by him against the
University authorities were concerned, they would stand withdrawn by him. The
settlement also provided that the respondent should be given benefit of
continuity of service and if the validity of the Order of suspension was
ultimately upheld by this Court and it was held that the respondent was not
legally entitled to anything more than the subsistence allowance actually paid
to him, the matter would be left to the Chancellor to determine in his sole
and. absolute discretion as to whether any additional amount at all, and if so,
what amount, may be paid to the respondent for the period of suspension exgratia
without any liability on the part of the University.
The Chancellor was authorised to determine
this matter in consultation with the Pro-Chancellor or in such other manner as
he thought proper and he could do so, even without giving any opportunity to
either party to make his or their submissions in the matter. Having regard to
this settlement, the only two questions which remained to be resolved by this
Court were, first, whether the Order of suspension was valid, and secondly, if
the Order of suspension was valid, whether the respondent was entitled to
anything more than the subsistence allowance actually paid to him. These two
questions we shall now proceed to decide.
The first question is whether the Order of
suspension made by the Vice-Chancellor was a valid Order or it suffered from
any legal infirmities. The respondent assailed the validity of the order of
suspension on the ground that it was made in purported exercise of the power
conferred under clause (9) (ii) of Schedule II to the Order dated 24th
December, 1969, but this Order w. as itself void and inoperative as it was in
conflict with the provisions of section 52, subsection (1) of the Act of 1969.
The argument of the respondent was that immediately before the commencement of
the Act of 1969, he did not hold or discharge the duties of any post or office
in connection with the affairs of the University on contract basis, nor was he
on deputation from any other service of the State of Jammu & Kashmir and he
was, therefore, not covered by section 52, sub-sections (4) under which the
Order dated 24th December, 1969 was purported to be made, but his case was
governed by section 52, subsection (1) which ensured him continuity in service
on the same terms and conditions as before and hence the order dated 24th December,
1969 altering his terms and conditions as set out in 53 Schedule II was
invalid. This argument would have required us to consider whether the
employment or the respondent under the University of Jammu & Kashmir
immediately prior to the commencement of the Act or 1967 was on contract basis,
because the provision in regard to deputation being inapplicable, it is only if
the employment of the respondent was on contract basis that the Order dated
24th December, 1969 could be justified under section 52, sub-section (4).
But we shall, for the purpose of the present
appeal, proceed on the assumption that the case of the respondent was governed
by subsection (1) and not sub-section (4) of section 52 and the order dated
24th December, 1969 in so far as it determined any different terms and
conditions for the respondent was not valid, since we find that, in the view
which is being taken by us, it is not necessary to examine this question.
Undoubtedly, the effect of tins assumption would be to put clause (9) (ii) of
Schedule II to the order dated 24th December, 1969 out of the way of the
respondent and it would not be available to the University and the
Vice-Chancellor m support of the Order of suspension. But even so, we think the
Vice-Chancellor had power to make the Order of suspension and he was within his
authority in doing so.
We have already pointed out that by reason of
Statute 2 read with clause (6) of the Form of Agreement annexed to the Statutes
made under the Act of 1965, the respondent was bound by any changes which might
be made in the Statutes from time to time and no change made in the Statutes
was to be regarded as having adversely affected the respondent.
Now, the Statutes made under the Act of 196.5
continued to be applicable to the University by reason of section 51, but
section 48, sub-section (2) provided for making of modifications, alterations
and additions in the Statutes with a view to bringing them in conformity with
the provisions of the Act of 1969. The Special Officer accordingly proposed
certain modifications in the Statutes which were found necessary to bring the
Statutes in conformity with the provisions of the Act of 1969 and. these
modifications were approved by the Chancellor by an Order dated 24th December,
1969 and by reason of section 48, sub-section (2) they were deemed to have been
made by the competent authority under the Act of 1969. This Order dated 24th
December, 1969 substituted Chapter IV in the Statutes by a new Chapter and
Statute 24(ii) in the newly substituted Chapter made the same provision as
clause (9)(ii) of .Schedule II to the Order made under sub-section (4) of
section 52. Now, obviously, if Statute 24(ii) were a valid provision, the Vice-Chancellor
would have power to suspend a teacher "on the ground of misconduct,
insubordination, inefficiency or unsatisfactory performance of duty" and
the Order of suspension made against the respondent would be within the authority
of the Vice-Chancellor. The respondent, therefore, assailed the validity of
Statute 24(ii) on the ground that it was not necessary for the purpose of
bringing the Statutes m conformity with the provisions of the Act of 1969 and
was hence not within the terms of section 48, subsection (2). Turning to the
language of section 48, sub section (2) it is clear that the power conferred on
the Vice-Chancellor under 54 that provision to approve modifications in the'
Statutes is a power which can be exercised only where the modifications are
necessary for bringing the Statutes in conformity with the provisions of the
Act of '1969, and if it is found that any modifications purported to be
approved by the Chancellor are plainly unnecessary from the point of view of
bringing the Statutes in conformity with the provisions of the Act of 1969', it
would be outside the power of the Chancellor to approve them. The Chancellor
cannot say that it is for him to decide in his subjective opinion whether the
modifications proposed to be made are necessary for bringing the Statutes in
conformity-with the Act of 1969 and that his subjective opinion is immune from
scrutiny in a court of law. Of course, if the view taken by the Chancellor is a
reasonably possible view, the Court would not interfere with the Order made by
him approving the modifications, but if what has been done by him is plainly
and egregiously wrong, the Court would certainly interfere on the ground that
the order made by the Chancellor is beyond the power conferred on him by
section 48, sub-section(2). The question which, therefore, arises for consideration
is whether Statute 24(ii,) could reasonably be said to be necessary for bringing
the Statutes in conformity with the provisions of the Act of 1969.
We may first refer to section 13, sub-section
(4) of the Act of 1969 which confers power on the Vice-Chancellor to take such
action as he deems necessary in any emergency which in his opinion calls for
immediate action. A similar provision was also made in section 13, sub-section
(4) of the Act of 1965. But the Act of 1969 introduced a new provision in
sub-section (6) of section 13 to the effect that the Vice-Chancellor shall be
responsible for the discipline of the University in accordance with the Act,
Statutes and Regulations. The Vice-Chancellor was, thus, entrusted under
sub-section (6) of section 13 with the task of maintaining discipline in the
University and the entrustment of this task carried with it by necessary
implication power to.
take whatever action was necessary for the
purpose of maintaining discipline, provided of course such action was in
accordance with the Act of 1969' and the Statutes and Regulations. Since
sub-section (6) of section 13 was a new provision enacted in the Act of 1969,
it was necessary to make Statutes for the purpose of enabling the Vice-Chancellor
to effectively discharge the responsibility of maintaining the discipline of
the University and for that purpose, vesting power in the Vice-Chancellor to
suspend a teacher pending departmental enquiry against him. It was with this
object of bringing the Statutes in conformity with subsection (6) of section 13
that Statute 24(ii) was added by way of modification in the Statutes by the
Order dated 24th December, 1969. We may concede straight away .that if there
was anything in the Act of 1969 which was inconsistent with the conferment of
power of interim suspension on the Vice-Chancellor, Statute 24(ii) could not be
approved by the Chancellor, because no Statute can be made is in conflict with
any provision of the Act. But we do not find anything in the Act of 1969 which
militates against vesting of power in the Vice-Chancellor to order interim
suspension of a teacher and hence Statute 24(ii) must be held to be a Statute
validly approved by the Chancellor 55 within his authority under section 48,
sub-section (2). The view taken by the Chancellor that Statute 24(ii) was necessary
for bringing the Statutes in conformity with sub-section (6) of 'section 13 can
not in any event be said to be so plainly erroneous that the Court would strike
down Statute 24(ii) as invalid. Now, if Statute 24(ii) is valid, there can be
no doubt that the respondent would be bound by it and in that event, the order
of suspension made by the Vice-Chancellor would be clearly within the power
conferred on him by that Statute. It is true that the Order of suspension did
not recite Stat Ute 24(ii) as the source of power under which it was made, but
it is now well settled, as a result of several decisions of this Court, that
when an authority makes an order which is otherwise within .its competence, it
cannot fail merely because it purports to be made under a wrong provision of
law, if it can be shown to be within its powers under any other provision a
wrong label cannot vitiate an order which is otherwise within the power of the
authority to make, Vide Hukamchand Mills Ltd. v. State of Madhya Pradesh(1) and
P. Balakotaiah v. Union of India.(2) We may also point out that the Order of
suspension was, in any event, justified by the provision in section 13,
sub-section (4). The Order of suspension, in fact, recited that it was made in
exercise of the power conferred under section 13, sub-section (4). Sub-section
(4) of section 13 is general in terms and provides that the Vice-Chancellor
shall be entitled to. take such action as he deems necessary in any emergency
which in his opinion calls for. immediate action. It does not talk specifically
of an order of interim suspension of a teacher but the width and amplitude of
the language of the provision would clearly include action by way of interim
suspension of a teacher,' when there is in the opinion of the Vice-Chancellor
an emergency calling for immediate action. The respondent contended that the
power to order interim suspension is a quasi judicial power and it would not be
comprehended within the language of sub-section (4) of section 13. But this
contention is clearly fallacious and the premise on which it is based is
unsound. It is not correct to say that an order of interim suspension is a
quasi judicial order and in any event, the language of sub-section (4-) of
section 13 is sufficiently wide and comprehensive to take within its scope and
ambit every kind of action which may be considered necessary by the Vice-Chancellor
in an emergency and there is no reason why such action should not include
making of an order of interim suspension. The Vice-Chancellor, therefore,
clearly had power under section 13, sub-section (4) to make an order of interim
suspension if he thought it necessary to make such an order in an emergent
situation which in his opinion called for immediate action. The respondent
sought to contend that at the date when the order of suspension was passed,
there was no emergency which called for immediate action on the part of the
Vice-Chancellor and, therefore, the foundation for taking action under section
13, subsection (4) was wanting and the order of suspension could not be
justified under that provision.
(1) A.I.R. 1964 S.C. 1329.
(2) [1958] S.C.R. 1052.
5--240SCI/77 56 But this contention cannot be
entertained by us since it has not been taken as a ground of challenge in the
writ petition. Whether or not there was 'an emergency requiring immediate
action on the part of the Vice-Chancellor .is entirely a question of fact and
if the respondent wanted to contest the validity of the exercise of power by
the Vice-Chancellor under section 13, sub-section (4) in making the order of
suspension, he should have pleaded in the writ petition that the order of
suspension was outside the power conferred under section 13, sub-section (4) as
there was no emergency. The respondent was aware from the recital contained in
the order of suspension that it was made by the Vice-Chancellor in exercise of
the power conferred under section 13, sub-section (4) and, therefore, if the
respondent wanted to challenge the exercise of this power on. the ground that
there was no emergency justifying its exercise, he should have made an averment
to that effect in the writ petition. If such averment had been made in the writ
petition, the University and the Vice-Chancellor would have had an opportunity
of meeting it in the affidavit in reply filed by them, but no such averment
having been made in the writ petition, the University and the Vice-Chancellor
were not called upon to meet it. Hence, we cannot permit the respondent to
challenge the validity of the order of suspension on the ground that there was
no emergency attracting the applicability of section 13, sub-section (4). The
order of suspension made by the Vice-Chancellor was plainly and indubitably an
order which the Vice-Chancellor had power to make under section 13, sub-section
(4). It may be noted that immediately after making the order of suspension the Vice-Chancellor
placed it before the Syndicate at its next meeting as required by the second
part of section 13, subsection (4) and the Syndicate approved of the action
taken by the Vice-Chancellor by rejecting the representation of the respondent
and recording the fact of the making of the order of suspension.
We may also refer to one other contention
urged on behalf of the respondent and that was that by reason of section 52,
sub-section (1) the respondent was entitled to continue in service of the
University on the same terms and conditions as regulated his service before the
commencement of the Act of 1969 and in view of the provide to sub-section (2)
of section 52 the conditions of service of the respondent could not be varied
to his disadvantage and, therefore, neither Statute 24(ii) nor section 13,
sub-section (4) could operate to confer on the Vice-Chancellor power to make
the order of suspension which he did not possess under the old terms and
conditions. This contention, plausible though it may seem, is, in our opinion,
not well founded. Section 52, subsection (1) undoubtedly continued the service
of a teacher on the same terms and conditions as regulated his service before
the commencement of the Act of 1969 and that was subject to the provisions of
sub-section (2) of section ,52, but this subjection to the provisions of sub-section
(2) did not import the requirement set out in the second proviso that the
conditions of service of a teacher shall not be varied to his disadvantage. The
words "subject to the provisions of sub-section (2)" employed in
subsection (1) of section 52 were intended merely'to clarify that a 57 teacher
shall continue in service on the same terms and conditions but subject to any
allocation which may be made by the Vice-Chancellor under sub-section (2) of
section
52. Nothing in sub-section (1) should be construed
as in any way derogating from the power of the Vice-Chancellor to make an
allocation of the teacher under section 52, subsection (2). The proviso to
sub-section (2)imposed a limitation on the power of the Chancellor to make an
allocation by providing that in making such allocation the conditions of
service of the employee shall not be varied to his disadvantage and it could
not be construed. as a substantive provision adding a requirement in
sub-section (1 ) that even though the terms and conditions of service may
permit alteration to the disadvantage of an employee, such alteration shall be
inhibited. We must, therefore, consider the impact of sub-section (1) of
section 52 unaffected by the provision to sub-section (2). Now, it is obvious that
even if the respondent was entitled to continue in service on the same terms
and conditions as before by reason of sub-section (1) of section 52, these very
terms and conditions provided that he would be bound by any changes which might
be made in the Statutes from time to time Vide Statute 2 read with clause (6)
of the Form of the Agreement annexed to the Statutes made under the Act of
1965. If, therefore, any changes were made in the terms and conditions of
service of the respondent by Statutes validly made under, the Act of 1969, the
respondent could not complain of any infraction of the provision of sub-section
(1) of section 52. Statute 24(ii) was, as already pointed out above, a Statute
validly made under section 48, sub-section (2) and hence the Vice-Chancellor
was entitled to make the order of suspension against the respondent in exercise
of the power conferred by that Statute. Section 13, sub-section (4) of the Act
of 1969 could also be availed of by the Vice-Chancellor for sustaining the order
of suspension, since it conferred the same power on the Vice-Chancellor as
section 13, sub-section (4) of the Act of 1965 and exercise of the power
conferred by it as against the respondent did not involve any violation of
sub-section ( 1 ) of section 52.
We are, therefore, of the view that the order
of suspension was a valid order made by the Vice-Chancellor in exercise of the
power conferred upon him under Statute 24(ii) as also section 13, sub-section
(4) of the Act of 1969. Now, if the order of suspension was a valid order, it
suspended the contract between the respondent and the University and neither
the respondent was bound to perform his duties under the contract nor was the
University bound to pay any salary to him. The respondent was entitled to
receive from the University only such subsistence allowance as might be
payables under the rules and regulations governing his terms and conditions of
service. The legal position in regard to the right of a master to suspend his
servant is now well settled as a result of several decisions of this Court. The
law on the subject was succinctly stated the following words by Hegde,J. in V P
Gindroniya v. State Madhya Pradesh (1):
(1) [1970] 3 S.C.R. 448.
58 "The general principle is that an employer
can suspend an employee of his pending an enquiry into his misconduct and the
only question that can arise in such a suspension will relate to the payment of
his wages during the period of such suspension. It is now well settled that the
power to suspend, in the sense of a right to forbid a employee to work, is not
an implied term in an ordinary contract between master and servant, and that
such a power can only be the creature either of a statute governing the
contract, or of an express term in the contract itself. Ordinarily, therefore,
the absence of such a power either as an express term in the contract or in the
rules framed under some Statute would mean that an employer would have no power
to suspend an employee of his and even if he does so in the sense that he
forbid the employee to work, he will have to pay the employee's wages during
the period of suspension. Where, however, there is power to suspend either in
the contract of employment or in the statute or the rules framed there under
the order of suspension has the effect of temporarily suspending the
relationship of master and servant with the consequence that the servant is not
bound to render service and the master is not bound to pay. It is equally well
settled that an order of interim suspension can be passed against the employee
while an enquiry is pending into his conduct even though there is no such term
in the contract of employment or in the rules, but in such a case the employee
would be entitled to his remuneration for the period of suspension if there is
no statute or rule under which, it could be withheld. The distinction between
suspending the contract of a service of a servant and suspending him from
performing the duties of his office on the basis that the contract is
subsisting is important, The suspension in the latter case is always an implied
term in every contract of service. When an employee is suspended in this sense,
it means that the employer merely issues a direction to him that he should not
do the service required of him during a particular period. In other words, the
employer is regarded as issuing an order to the employee which because the
contract is subsisting, the employee must obey." It will, therefore, be
seen that where there is power conferred on the employer either by express term
in contract or by the rules governing the terms and conditions of service to
suspend an employee, the order of suspension has the effect of temporarily
suspending the relation of master and servant with the consequence that .the employee
is not bound to render service and the employer is not bound to pay. In such a
case the employee would not be entitled to receive any payment at all from the
employer unless the contract of employment or the rules governing the terms and
conditions of service provide for payment of some sub-sistance allowance. Here,
as we have held, 59 the Vice-Chancellor had the power to suspend the respondent
under Statute 24(ii,) or in any event under section 13, sub-section (4) and
hence the respondent could not claim payment of his salary during the period of
suspension. The only' payment which the respondent could claim to receive from
the University was subsistence allowance. if the rules governing the terms and
conditions of his service made such a provision. The University stated that it
had adopted as a matter of practice the rules relating to Civil Servants of the
State of Jammu & Kashmir for the purpose of payment of subsistence
allowance to its employees and in fact the University Council at its meeting held
on 22nd February, 1971 formally accorded approval to this practice. The
respondent was, therefore, clearly not entitled to receive from the University
anything more than the subsistence allowance actually paid to him, which, we
are told, was paid on the same basis as that prevailing under the rules relating
to Civil Servants of the State of Jammu & Kashmir.
These were the reasons for which we made our
order dated 17th December, 1976 upholding the validity of the order of
suspension dated 21st May, 1970 and holding that the respondent was not
entitled to anything more than the subsistence allowance paid to him during the
period of suspension under the order of the Registrars dated 6th June, 1970.
Back
