Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: January 07, 2016
+ W.P.(C) 4639/2015
DR. BHIM SEN SINGH
..... Petitioner
Through: Ms.Jyoti Singh, Sr. Advocate with
Ms.Tinu Bajwa & Ms.Lakshmi
Gurung, Advocates
versus
THE UNIVERSITY OF DELHI & ORS.
..... Respondents
Through: Mr.Sudhir Nandrajog, Senior
Advocate with Mr.Mohinder J.S.
Rupal, Adv. for R-1
Mr.Pranav Kr. Jha, Advocate for
R-2 & R-3
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)
1. In view of the order dated May 15, 2015, the only relief that
survives for consideration in this writ petition is the following:
“(a) Allow the present writ petition by issuing a writ of
mandamus or any other appropriate writ order/direction
to reinstate the petitioner who vide suspension order
dated 01.08.2012 had been placed under suspension
declaring that such suspension order has not been
reviewed and is invalid”.
W.P.(C) No.11034/2015 Page 1 of 13
2. It is the submission of Ms. Jyoti Singh, learned Senior Counsel
appearing for the petitioner that even though, the ordinance XII of the
University does not prescribe reviewing of the suspension, on expiry of
certain period, the respondent No. 2-College has adopted the CCS
(CCA) Rules, 1965 („Rules of 1965‟ in short) to govern the departmental
proceedings and the same is clear from page 510 of the paper book
wherein it was noted by the learned Enquiry Officer, on an issue of
applicability of Rules of 1965, on the statement made by Mr. Mittal,
learned counsel for the college, that the college authorities have no
objection in following the principles of Rules of 1965 in respect of
departmental enquiry against the petitioner as well. She states, in view
of such a statement, the Rules of 1965 deemed to have been adopted in
toto to govern the suspension of the petitioner herein as well. In that
regard, she would rely upon the judgment of the Supreme Court in the
case reported as 2010 (2) SCC 222 Union of India Vs. Dipak Mali 1999.
3. She would also state, subject matter of the departmental
proceedings is a charge sheet issued to the petitioner on August 30,
2012. The charges have been enquired into and the Enquiry Officer has
submitted his report to the Management Committee of the College. The
departmental proceedings have concluded, there is no threat of petitioner
W.P.(C) No.11034/2015 Page 2 of 13
influencing the witnesses or fabricating the documents so as to keep him
away from duties. In other words, it is her case that no ground exists to
continue the petitioner under suspension. She would also refer to a
second charge sheet issued to the petitioner in the month of November,
2014, which has also come to an end as the Enquiry Officer has closed
the proceedings and has only to submit his report to the Management
Committee for it to take a decision. Even on that ground, the
continuance of petitioner under suspension is untenable. She also refers
to the letter dated March 2, 2015 to contend, in the said letter, it is the
stand of the University that they have given approval to the decision of
the Governing Body at its meeting held on December 11, 2014 to allow
keeping the petitioner under suspension during the pendency of the
second enquiry. She states, no such decision can be seen from the
proceedings of the Governing Body held on December 11, 2014 as there
was no such agenda item for the said meeting, hence, there is no question
of Vice Chancellor approving the continuance of the petitioner under
suspension. She would also state, the reliance placed by the respondent
No.1 University on the letter dated January 15, 2015 in support of their
letter dated March 2, 2015, is not tenable as Dr. S.P. Gupta had no locus
to write a letter to the Vice Chancellor, seeking his approval for
continuance of the petitioner under suspension both on the ground of
W.P.(C) No.11034/2015 Page 3 of 13
being not competent, as the Governing Body is the appointing authority
and being an interested party, as he is holding the post Acting Principal,
the post earlier held by the petitioner. She would also state whether rules
for review exists or not, the principles of natural justice demand timely
review of suspension must be read in the rules so that the
employee/officer does not remain incarcerated till the end of the
proceedings without justification. In that regard she rely on the
judgment reported as 1999 (7) SCC 739 Yoginath Bagade vs. State of
Maharashtra and 2009 (112) DRJ 391 (DB) Prof. Bidyug Chakraborty
vs. Delhi University & Ors . In the last it is her submission that till date
there is no decision of the Governing Body reviewing the suspension of
the petitioner. She would also rely on judgment of the Supreme Court in
Ajay Kumar Choudhary vs. Union of India through its Secretary &
Anr., Civil Appeal No. 1912/2015 decided on February 16, 2015 in
support of her submissions.
5. On the other hand, learned counsel appearing for the respondent
No.2 College would state that the Rules of 1965 are not applicable to the
University of Delhi and its constituent colleges. He would refer to
Clause 7 of the Ordinance XII, which inter alia, contemplates suspension
of an employee. According to him, there is no provision in the
Ordinances adopting the Rules of 1965, which governs the suspension,
W.P.(C) No.11034/2015 Page 4 of 13
departmental proceedings etc. According to him, the contention of the
learned Senior Counsel for the petitioner that the Rules of 1965 have
been made applicable by placing reliance on the proceedings held against
one Dr. S.C.Garg and also statement given by counsel appearing for the
College before the Ld. Enquiry Officer in the proceedings against the
petitioner, is only to follow the rules for the conduct of the departmental
proceedings against Dr. Garg and the petitioner as the said rules lays
down a definite procedure for holding departmental proceedings. The
statement cannot be read to mean, adopting the Rules of 1965, as a
whole. According to him, no statement to govern the suspension of the
petitioner under Rule 10 of the Rules of 1965 has been made. In the
absence of any provision for a periodical review, the suspension cannot
be held to be bad. According to him, the reliance placed by the learned
Senior Counsel for the petitioner on the judgment of the Supreme Court
in the case reported as 2010 (2) SCC 222 Union of India & Ors. Vs.
Dipak Mali is untenable and the same is not applicable, as the judgment
deals with a situation under the Rules of 1965. That apart, it is his
submission, even if the Enquiry Officer has submitted his report, that
would not entail revocation of the suspension of the petitioner. He states,
the respondent No. 2 College has recommended the termination of the
petitioner to the respondent No.1 University and the College is awaiting
W.P.(C) No.11034/2015 Page 5 of 13
the decision on that. He also states, noting the position, the petitioner
held in the college, the revocation of his suspension would not like to be
allowed by this Court. That apart, it is his submission that departmental
proceedings qua the second charge sheet have only been closed by the
Enquiry Officer but he is yet to give his report. Till such time the
proceedings culminate in the final order(s), the plea of revocation of
suspension is untenable. He relied upon the judgment of this Court in
the case reported as 2009 (112) DRJ 54 (DB) Professor Ramesh
Chandra vs. University of Delhi & Anr.
6. Mr.Sudhir Nandrajog, learned counsel appearing for the
respondent No.1 University would submit, the communication dated
March 02, 2015 of the University was rightly issued and the same has to
be read in conjunction with the letter dated January 15, 2015 of Dr. S.P.
Gupta, written in his capacity as the Member Secretary of the Governing
Body, wherein approval of the Vice-Chancellor was sought for
continuance of the petitioner‟s under suspension in view of second
charge-sheet. He states, the Governing Body in its meeting dated
November 02, 2015 did consider the letter dated January 15, 2015
written by Dr. S.P. Gupta but did not comment otherwise, on the letter,
which means, the Governing Body had accepted/agreed with the
approval sought for continuance of the petitioner under suspension.
W.P.(C) No.11034/2015 Page 6 of 13
According to him, even though the learned Enquiry Officer had absolved
the petitioner against some of the charges in the first charge-sheet,
pursuant to a note of disagreement given to the petitioner, the Governing
Body after considering the reply filed by the petitioner has decided to
terminate the services of the petitioner. The decision has been sent to the
Vice-Chancellor for approval. According to him, it is a case of loss of
confidence, and his reinstatement in such circumstances is undesirable.
He seeks the dismissal of the writ petition.
7. Having considered the submissions advanced by the learned
counsel for the parties, insofar as the submission of Ms. Jyoti Singh,
learned Senior Counsel for the petitioner, on the applicability of the
Rules of 1965 by placing reliance on the order passed by the learned
Enquiry Officer in the proceedings held against the petitioner, suffice to
state, the statement made by Mr Mittal is very clear, that he has no
objection in following the principles of the Rules of 1965 in respect of
departmental proceedings against Dr. Singh, the petitioner herein. The
said statement was noted by the Enquiry Officer (at page 510) in the
following terms:-
“Faced with the said argument Mr. Mittal appearing for
the college, has fairly submitted that the college
authorities have no objection in following the principles of
CCS/CCA rules also in respect of departmental enquiry
against Dr. Singh. Further Mr. Mittal submitted that the
W.P.(C) No.11034/2015 Page 7 of 13
said rules are made applicable in the departmental
proceedings against Dr. Singh. Further Mr. Mittal
submitted that the said rules are made applicable in the
departmental proceedings against Dr. Sigh to the extent
possible.”
8. The aforesaid statement has to be read in the context that there is
no detail procedure laid down in the Ordinances of the University for
conducting the departmental proceedings and the Rules of 1965
encompasses in itself the principles of natural justice/fair procedure.
Surely, a “departmental enquiry” would not contemplate „suspension‟ as
a departmental enquiry starts with the issuance of charge-sheet and
culminate with a final order. No doubt, the Rules of 1965, vide Rule 10
stipulates, „suspension‟, but that is not part of the procedure governing
the „departmental enquiry‟. Further, as noted above there is a provision
for „suspension‟ in the Ordinance XII which does not contemplate timely
review. The procedure to review the suspension after a particular time
period, need to be prescribed in the Rules by the rule making authority,
as prescribing such a provision would impose an obligation on the
authority to review periodically. That apart, a procedure needs to be laid
down as to in what manner the review needs to take place. That apart,
any violation thereof leads to a particular consequence, that is the
suspension becomes invalid. A statement made by a counsel would not
make the complete Rules of 1965 applicable. This submission needs to
W.P.(C) No.11034/2015 Page 8 of 13
be rejected. The judgment of the Supreme Court in Dipak Mali (supra)
is not applicable, as the CCS (CCA) Rules are not applicable.
9. Insofar as the submission of Ms. Jyoti Singh, by relying upon the
judgment of the Supreme Court in the case of Yoginath D. Bagde Vs.
State of Maharashtra and Another, 1999 (7) SCC 739, more
specifically para 28 to contend that the principles of natural justice
require that the suspension must be reviewed periodically, and such a
procedure must be read in the rules, is concerned, suffice to state, the
observation of the Supreme Court was in the context, where the
principles of natural justice, giving a hearing to the delinquent employee
when the disciplinary authority disagreed with the finding recorded by
the Enquiry Officer, has been denied. The Supreme Court in that
situation held, the principles of natural justice must be read into the
rules. Such a proposition cannot be read in the case of this nature where
there is no provision at all in the Rules to review a suspension after a
particular period. Reading the opportunity of hearing in a rule is not the
same as reading into a rule procedure, which imposes an obligation on
the authority with a consequence i.e. making suspension invalid. So such
a process cannot be read into the Rules on the premise that the same is in
violation of the principles of natural justice. No doubt, the competent
authority otherwise is required to review the suspension of an officer
W.P.(C) No.11034/2015 Page 9 of 13
from time to time without any obligation of time limit.
10. Insofar as the submission made by Ms. Jyoti Singh, relying upon
the judgment of this Court in the case of Prof. Bidyug Chakraborty Vs.
Delhi University and Ors., 2009 (112) DRJ 391 (DB) is concerned, no
doubt in the said case, this Court based on the judgment of the Supreme
Court in Medha Kotwal Lele and Ors. Vs. Union of India and Ors.,
W.P.(C) 173-177 of 1999 decided on April 26, 2004 wherein, the
Supreme Court has held that the Complaints Committee envisaged in
Vishaka and Ors. Vs. State of Rajasthan and Ors., (1997) 6 SCC 241
will be deemed to be an Enquiry Authority for the purposes of the Rules
of 1965 and the report of the complaints committee shall be deemed to
be an inquiry report under the Rules of 1965, and read into the
Ordinance XV-D, „Complaints Committee‟ to mean Enquiry Authority,
which did not contain identical Clause (16) and (17) of Rule 14 of the
Rules of 1965. Suffice to state, such a procedure was evolved by the
Supreme Court in the cases of sexual harassment only, to obviate a
situation of a woman employee facing two enquiries, one, fact finding
enquiry pursuant to a complaint and two, an enquiry under the conduct
rules. It is in view of the dicta of the Supreme Court, this Court has read
into the Ordinance XV-D, the report of the Complaints Committee to
mean the report of the Enquiry Authority. There is no dispute to the fact
W.P.(C) No.11034/2015 Page 10 of 13
that this Court was in fact, dealing with a case of sexual harassment in
Prof. Bidyug Chakraborty (supra), which is not the case here. Hence
the submission of Ms. Jyoti Singh, needs to be rejected.
11. Insofar as the submission of Ms. Jyoti Singh that the decision of
the Vice Chancellor communicated through letter dated March 2, 2015 to
state that no such decision was taken by the Governing Body of the
College, hence, the decision was totally extraneous, is concerned, suffice
to state, a perusal of the letter dated March 2, 2015 does refer to a
communication dated January 15, 2015, seeking approval of the Vice
Chancellor to the continuance of suspension of the petitioner, even after
issuance of second charge sheet. The said letter was written by Dr.
S.P.Gupta as Member Secretary of the Kirori Mal College Governing
Body and which reads as under:
The Vice Chancellor Date- 15.01.2015
University of Delhi
Delhi-110007
Sir,
As directed by the Chairman of the college Governing
Body on 14.01.2015, I am writing this letter.
The Governing Body at its meeting held on 11.12.2014
considered the reply of Dr. Bhim Sen Singh, Principal
(under suspension) to the memorandum dated 6.11.2014
issued to him. The Governing Body decided to set up an
enquiry in the matter because Dr. Bhim Sen Singh had
denied all the charges in the memorandum dated
6.11.2014 and it further authorized the Chairman to
W.P.(C) No.11034/2015 Page 11 of 13
appoint the Enquiry Officer as well as the Presenting
Officer.
A copy of the memorandum is enclosed herewith.
Please allow the Governing Body to keep the suspended
Principal Dr. Bhim Sen Singh under suspension during
this enquiry.
With regards,
Yours Sincerely
(Dr. S.P. Gupta)
Member Secretary, K.M. College Governing Body.”
12. The letter reveals that the same was written by Dr. Gupta on the
directions of the Chairman of the Governing Body. The Governing Body
which is the Disciplinary Authority, did note the letter dated January 15,
2015 in its meeting held on November 12, 2015 and did not decide to
revoke the suspension of the petitioner. This submission is also rejected.
13. The submission of Mr.Nandrajog that the Governing Body, being
the Disciplinary Authority, having prima facie found that the charges
framed against the petitioner are sustainable, decided to terminate the
services of the petitioner, which decision is pending approval of the
Vice-Chancellor, and in such situation the suspension should not be
revoked is appealing. Till such time the decision is taken by the Vice-
Chancellor, the Governing Body‟s decision to terminate the services of
the petitioner cannot be overlooked, in deciding the issue of revocation
of his suspension.
W.P.(C) No.11034/2015 Page 12 of 13
14. In view of the aforesaid peculiar facts, the judgment of the
Supreme Court in Ajay Kumar Choudhary (supra) , relied upon the
learned Senior Counsel for the petitioner would also not be applicable.
No doubt, the Supreme Court in para 14 held that the currency of
suspension order should not extend beyond three months if within such
period the Memorandum of Charge/Charge-sheet is not served on the
delinquent officer/employee. The Supreme Court further held, if the
Memorandum of Charges/Charge-sheet is served, a reasoned order must
be passed for the extension of suspension, as according to the Supreme
Court the Government is free to transfer the concerned person to any
department in any of its offices within or outside the State so as to sever
any local or personal contact which he may have and which he may
misuse for obstructing the investigation against him. The Supreme Court
although in the said case noting that the charge-sheet has been served,
had not interfered with the suspension, however observed the appellant
may challenge his continuous suspension in any manner known to law
and the action of the respondents will be subject to judicial review.
15. In view of the above discussion, I do not see any merit in the
petition. The same is dismissed.
(V.KAMESWAR RAO)
JUDGE
akb/km
JANUARY 07, 2016/
W.P.(C) No.11034/2015 Page 13 of 13
Date of decision: January 07, 2016
+ W.P.(C) 4639/2015
DR. BHIM SEN SINGH
..... Petitioner
Through: Ms.Jyoti Singh, Sr. Advocate with
Ms.Tinu Bajwa & Ms.Lakshmi
Gurung, Advocates
versus
THE UNIVERSITY OF DELHI & ORS.
..... Respondents
Through: Mr.Sudhir Nandrajog, Senior
Advocate with Mr.Mohinder J.S.
Rupal, Adv. for R-1
Mr.Pranav Kr. Jha, Advocate for
R-2 & R-3
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)
1. In view of the order dated May 15, 2015, the only relief that
survives for consideration in this writ petition is the following:
“(a) Allow the present writ petition by issuing a writ of
mandamus or any other appropriate writ order/direction
to reinstate the petitioner who vide suspension order
dated 01.08.2012 had been placed under suspension
declaring that such suspension order has not been
reviewed and is invalid”.
W.P.(C) No.11034/2015 Page 1 of 13
2. It is the submission of Ms. Jyoti Singh, learned Senior Counsel
appearing for the petitioner that even though, the ordinance XII of the
University does not prescribe reviewing of the suspension, on expiry of
certain period, the respondent No. 2-College has adopted the CCS
(CCA) Rules, 1965 („Rules of 1965‟ in short) to govern the departmental
proceedings and the same is clear from page 510 of the paper book
wherein it was noted by the learned Enquiry Officer, on an issue of
applicability of Rules of 1965, on the statement made by Mr. Mittal,
learned counsel for the college, that the college authorities have no
objection in following the principles of Rules of 1965 in respect of
departmental enquiry against the petitioner as well. She states, in view
of such a statement, the Rules of 1965 deemed to have been adopted in
toto to govern the suspension of the petitioner herein as well. In that
regard, she would rely upon the judgment of the Supreme Court in the
case reported as 2010 (2) SCC 222 Union of India Vs. Dipak Mali 1999.
3. She would also state, subject matter of the departmental
proceedings is a charge sheet issued to the petitioner on August 30,
2012. The charges have been enquired into and the Enquiry Officer has
submitted his report to the Management Committee of the College. The
departmental proceedings have concluded, there is no threat of petitioner
W.P.(C) No.11034/2015 Page 2 of 13
influencing the witnesses or fabricating the documents so as to keep him
away from duties. In other words, it is her case that no ground exists to
continue the petitioner under suspension. She would also refer to a
second charge sheet issued to the petitioner in the month of November,
2014, which has also come to an end as the Enquiry Officer has closed
the proceedings and has only to submit his report to the Management
Committee for it to take a decision. Even on that ground, the
continuance of petitioner under suspension is untenable. She also refers
to the letter dated March 2, 2015 to contend, in the said letter, it is the
stand of the University that they have given approval to the decision of
the Governing Body at its meeting held on December 11, 2014 to allow
keeping the petitioner under suspension during the pendency of the
second enquiry. She states, no such decision can be seen from the
proceedings of the Governing Body held on December 11, 2014 as there
was no such agenda item for the said meeting, hence, there is no question
of Vice Chancellor approving the continuance of the petitioner under
suspension. She would also state, the reliance placed by the respondent
No.1 University on the letter dated January 15, 2015 in support of their
letter dated March 2, 2015, is not tenable as Dr. S.P. Gupta had no locus
to write a letter to the Vice Chancellor, seeking his approval for
continuance of the petitioner under suspension both on the ground of
W.P.(C) No.11034/2015 Page 3 of 13
being not competent, as the Governing Body is the appointing authority
and being an interested party, as he is holding the post Acting Principal,
the post earlier held by the petitioner. She would also state whether rules
for review exists or not, the principles of natural justice demand timely
review of suspension must be read in the rules so that the
employee/officer does not remain incarcerated till the end of the
proceedings without justification. In that regard she rely on the
judgment reported as 1999 (7) SCC 739 Yoginath Bagade vs. State of
Maharashtra and 2009 (112) DRJ 391 (DB) Prof. Bidyug Chakraborty
vs. Delhi University & Ors . In the last it is her submission that till date
there is no decision of the Governing Body reviewing the suspension of
the petitioner. She would also rely on judgment of the Supreme Court in
Ajay Kumar Choudhary vs. Union of India through its Secretary &
Anr., Civil Appeal No. 1912/2015 decided on February 16, 2015 in
support of her submissions.
5. On the other hand, learned counsel appearing for the respondent
No.2 College would state that the Rules of 1965 are not applicable to the
University of Delhi and its constituent colleges. He would refer to
Clause 7 of the Ordinance XII, which inter alia, contemplates suspension
of an employee. According to him, there is no provision in the
Ordinances adopting the Rules of 1965, which governs the suspension,
W.P.(C) No.11034/2015 Page 4 of 13
departmental proceedings etc. According to him, the contention of the
learned Senior Counsel for the petitioner that the Rules of 1965 have
been made applicable by placing reliance on the proceedings held against
one Dr. S.C.Garg and also statement given by counsel appearing for the
College before the Ld. Enquiry Officer in the proceedings against the
petitioner, is only to follow the rules for the conduct of the departmental
proceedings against Dr. Garg and the petitioner as the said rules lays
down a definite procedure for holding departmental proceedings. The
statement cannot be read to mean, adopting the Rules of 1965, as a
whole. According to him, no statement to govern the suspension of the
petitioner under Rule 10 of the Rules of 1965 has been made. In the
absence of any provision for a periodical review, the suspension cannot
be held to be bad. According to him, the reliance placed by the learned
Senior Counsel for the petitioner on the judgment of the Supreme Court
in the case reported as 2010 (2) SCC 222 Union of India & Ors. Vs.
Dipak Mali is untenable and the same is not applicable, as the judgment
deals with a situation under the Rules of 1965. That apart, it is his
submission, even if the Enquiry Officer has submitted his report, that
would not entail revocation of the suspension of the petitioner. He states,
the respondent No. 2 College has recommended the termination of the
petitioner to the respondent No.1 University and the College is awaiting
W.P.(C) No.11034/2015 Page 5 of 13
the decision on that. He also states, noting the position, the petitioner
held in the college, the revocation of his suspension would not like to be
allowed by this Court. That apart, it is his submission that departmental
proceedings qua the second charge sheet have only been closed by the
Enquiry Officer but he is yet to give his report. Till such time the
proceedings culminate in the final order(s), the plea of revocation of
suspension is untenable. He relied upon the judgment of this Court in
the case reported as 2009 (112) DRJ 54 (DB) Professor Ramesh
Chandra vs. University of Delhi & Anr.
6. Mr.Sudhir Nandrajog, learned counsel appearing for the
respondent No.1 University would submit, the communication dated
March 02, 2015 of the University was rightly issued and the same has to
be read in conjunction with the letter dated January 15, 2015 of Dr. S.P.
Gupta, written in his capacity as the Member Secretary of the Governing
Body, wherein approval of the Vice-Chancellor was sought for
continuance of the petitioner‟s under suspension in view of second
charge-sheet. He states, the Governing Body in its meeting dated
November 02, 2015 did consider the letter dated January 15, 2015
written by Dr. S.P. Gupta but did not comment otherwise, on the letter,
which means, the Governing Body had accepted/agreed with the
approval sought for continuance of the petitioner under suspension.
W.P.(C) No.11034/2015 Page 6 of 13
According to him, even though the learned Enquiry Officer had absolved
the petitioner against some of the charges in the first charge-sheet,
pursuant to a note of disagreement given to the petitioner, the Governing
Body after considering the reply filed by the petitioner has decided to
terminate the services of the petitioner. The decision has been sent to the
Vice-Chancellor for approval. According to him, it is a case of loss of
confidence, and his reinstatement in such circumstances is undesirable.
He seeks the dismissal of the writ petition.
7. Having considered the submissions advanced by the learned
counsel for the parties, insofar as the submission of Ms. Jyoti Singh,
learned Senior Counsel for the petitioner, on the applicability of the
Rules of 1965 by placing reliance on the order passed by the learned
Enquiry Officer in the proceedings held against the petitioner, suffice to
state, the statement made by Mr Mittal is very clear, that he has no
objection in following the principles of the Rules of 1965 in respect of
departmental proceedings against Dr. Singh, the petitioner herein. The
said statement was noted by the Enquiry Officer (at page 510) in the
following terms:-
“Faced with the said argument Mr. Mittal appearing for
the college, has fairly submitted that the college
authorities have no objection in following the principles of
CCS/CCA rules also in respect of departmental enquiry
against Dr. Singh. Further Mr. Mittal submitted that the
W.P.(C) No.11034/2015 Page 7 of 13
said rules are made applicable in the departmental
proceedings against Dr. Singh. Further Mr. Mittal
submitted that the said rules are made applicable in the
departmental proceedings against Dr. Sigh to the extent
possible.”
8. The aforesaid statement has to be read in the context that there is
no detail procedure laid down in the Ordinances of the University for
conducting the departmental proceedings and the Rules of 1965
encompasses in itself the principles of natural justice/fair procedure.
Surely, a “departmental enquiry” would not contemplate „suspension‟ as
a departmental enquiry starts with the issuance of charge-sheet and
culminate with a final order. No doubt, the Rules of 1965, vide Rule 10
stipulates, „suspension‟, but that is not part of the procedure governing
the „departmental enquiry‟. Further, as noted above there is a provision
for „suspension‟ in the Ordinance XII which does not contemplate timely
review. The procedure to review the suspension after a particular time
period, need to be prescribed in the Rules by the rule making authority,
as prescribing such a provision would impose an obligation on the
authority to review periodically. That apart, a procedure needs to be laid
down as to in what manner the review needs to take place. That apart,
any violation thereof leads to a particular consequence, that is the
suspension becomes invalid. A statement made by a counsel would not
make the complete Rules of 1965 applicable. This submission needs to
W.P.(C) No.11034/2015 Page 8 of 13
be rejected. The judgment of the Supreme Court in Dipak Mali (supra)
is not applicable, as the CCS (CCA) Rules are not applicable.
9. Insofar as the submission of Ms. Jyoti Singh, by relying upon the
judgment of the Supreme Court in the case of Yoginath D. Bagde Vs.
State of Maharashtra and Another, 1999 (7) SCC 739, more
specifically para 28 to contend that the principles of natural justice
require that the suspension must be reviewed periodically, and such a
procedure must be read in the rules, is concerned, suffice to state, the
observation of the Supreme Court was in the context, where the
principles of natural justice, giving a hearing to the delinquent employee
when the disciplinary authority disagreed with the finding recorded by
the Enquiry Officer, has been denied. The Supreme Court in that
situation held, the principles of natural justice must be read into the
rules. Such a proposition cannot be read in the case of this nature where
there is no provision at all in the Rules to review a suspension after a
particular period. Reading the opportunity of hearing in a rule is not the
same as reading into a rule procedure, which imposes an obligation on
the authority with a consequence i.e. making suspension invalid. So such
a process cannot be read into the Rules on the premise that the same is in
violation of the principles of natural justice. No doubt, the competent
authority otherwise is required to review the suspension of an officer
W.P.(C) No.11034/2015 Page 9 of 13
from time to time without any obligation of time limit.
10. Insofar as the submission made by Ms. Jyoti Singh, relying upon
the judgment of this Court in the case of Prof. Bidyug Chakraborty Vs.
Delhi University and Ors., 2009 (112) DRJ 391 (DB) is concerned, no
doubt in the said case, this Court based on the judgment of the Supreme
Court in Medha Kotwal Lele and Ors. Vs. Union of India and Ors.,
W.P.(C) 173-177 of 1999 decided on April 26, 2004 wherein, the
Supreme Court has held that the Complaints Committee envisaged in
Vishaka and Ors. Vs. State of Rajasthan and Ors., (1997) 6 SCC 241
will be deemed to be an Enquiry Authority for the purposes of the Rules
of 1965 and the report of the complaints committee shall be deemed to
be an inquiry report under the Rules of 1965, and read into the
Ordinance XV-D, „Complaints Committee‟ to mean Enquiry Authority,
which did not contain identical Clause (16) and (17) of Rule 14 of the
Rules of 1965. Suffice to state, such a procedure was evolved by the
Supreme Court in the cases of sexual harassment only, to obviate a
situation of a woman employee facing two enquiries, one, fact finding
enquiry pursuant to a complaint and two, an enquiry under the conduct
rules. It is in view of the dicta of the Supreme Court, this Court has read
into the Ordinance XV-D, the report of the Complaints Committee to
mean the report of the Enquiry Authority. There is no dispute to the fact
W.P.(C) No.11034/2015 Page 10 of 13
that this Court was in fact, dealing with a case of sexual harassment in
Prof. Bidyug Chakraborty (supra), which is not the case here. Hence
the submission of Ms. Jyoti Singh, needs to be rejected.
11. Insofar as the submission of Ms. Jyoti Singh that the decision of
the Vice Chancellor communicated through letter dated March 2, 2015 to
state that no such decision was taken by the Governing Body of the
College, hence, the decision was totally extraneous, is concerned, suffice
to state, a perusal of the letter dated March 2, 2015 does refer to a
communication dated January 15, 2015, seeking approval of the Vice
Chancellor to the continuance of suspension of the petitioner, even after
issuance of second charge sheet. The said letter was written by Dr.
S.P.Gupta as Member Secretary of the Kirori Mal College Governing
Body and which reads as under:
The Vice Chancellor Date- 15.01.2015
University of Delhi
Delhi-110007
Sir,
As directed by the Chairman of the college Governing
Body on 14.01.2015, I am writing this letter.
The Governing Body at its meeting held on 11.12.2014
considered the reply of Dr. Bhim Sen Singh, Principal
(under suspension) to the memorandum dated 6.11.2014
issued to him. The Governing Body decided to set up an
enquiry in the matter because Dr. Bhim Sen Singh had
denied all the charges in the memorandum dated
6.11.2014 and it further authorized the Chairman to
W.P.(C) No.11034/2015 Page 11 of 13
appoint the Enquiry Officer as well as the Presenting
Officer.
A copy of the memorandum is enclosed herewith.
Please allow the Governing Body to keep the suspended
Principal Dr. Bhim Sen Singh under suspension during
this enquiry.
With regards,
Yours Sincerely
(Dr. S.P. Gupta)
Member Secretary, K.M. College Governing Body.”
12. The letter reveals that the same was written by Dr. Gupta on the
directions of the Chairman of the Governing Body. The Governing Body
which is the Disciplinary Authority, did note the letter dated January 15,
2015 in its meeting held on November 12, 2015 and did not decide to
revoke the suspension of the petitioner. This submission is also rejected.
13. The submission of Mr.Nandrajog that the Governing Body, being
the Disciplinary Authority, having prima facie found that the charges
framed against the petitioner are sustainable, decided to terminate the
services of the petitioner, which decision is pending approval of the
Vice-Chancellor, and in such situation the suspension should not be
revoked is appealing. Till such time the decision is taken by the Vice-
Chancellor, the Governing Body‟s decision to terminate the services of
the petitioner cannot be overlooked, in deciding the issue of revocation
of his suspension.
W.P.(C) No.11034/2015 Page 12 of 13
14. In view of the aforesaid peculiar facts, the judgment of the
Supreme Court in Ajay Kumar Choudhary (supra) , relied upon the
learned Senior Counsel for the petitioner would also not be applicable.
No doubt, the Supreme Court in para 14 held that the currency of
suspension order should not extend beyond three months if within such
period the Memorandum of Charge/Charge-sheet is not served on the
delinquent officer/employee. The Supreme Court further held, if the
Memorandum of Charges/Charge-sheet is served, a reasoned order must
be passed for the extension of suspension, as according to the Supreme
Court the Government is free to transfer the concerned person to any
department in any of its offices within or outside the State so as to sever
any local or personal contact which he may have and which he may
misuse for obstructing the investigation against him. The Supreme Court
although in the said case noting that the charge-sheet has been served,
had not interfered with the suspension, however observed the appellant
may challenge his continuous suspension in any manner known to law
and the action of the respondents will be subject to judicial review.
15. In view of the above discussion, I do not see any merit in the
petition. The same is dismissed.
(V.KAMESWAR RAO)
JUDGE
akb/km
JANUARY 07, 2016/
W.P.(C) No.11034/2015 Page 13 of 13