'Registar Did Not Have Power To Initiate Disciplinary Action': Calcutta HC Quashes Suspension Order Of Visva Bharati University Asst. Professor

The Calcutta High Court on Wednesday set aside a showcase notice and the subsequent suspension of a Visva Bharati University assistant professor after observing that the Registrar (Acting) did not have the power to initiate disciplinary action against the professor. 

The Visva Bharati authorities had on February 24, 2021, showcaused Rajesh Kaleerakath Venugopal, assistant professor of Rabindra dance and drama at the varsity's Sangeet Bhavana, asking him to clarify why action would not be taken against him for negligence in duty and misconduct.

Justice Moushumi Bhattacharya directed, 

"This Court is of the view that since the Registrar (Acting) did not have the power to initiate disciplinary action against the petitioner, who is an Adhyapaka of the University, the defect of jurisdiction goes to the root of the matter and nullifies all subsequent steps taken thereafter. The Charge-sheet and the order of suspension are hence without authority and should be quashed on that basis. In other words, to quote the legal maxim sublato fundamento cadit opus, if the foundation of the action is removed, the superstructure must fall"

The impugned showcause notice was issued by the Registrar (Acting) of the University. The petitioner had replied to the show-cause by a letter dated February 26,  2021 disputing the allegation of negligence of duty and misconduct. Thereafter, the impugned charge sheet was issued against the petitioner on February 27, 2021 by the Registrar (Acting) of the University following which the petitioner had addressed his defence to the Memorandum of Charges by way of a letter dated March 8, 2021.

The impugned order of suspension was issued thereafter on March 13, 2021 by the Registrar (Acting) of the University by which the petitioner was placed under suspension with immediate effect pending disposal of the disciplinary proceedings. The disciplinary proceedings were extended several times thereafter.

Pursuant to the perusal of the record, the Court observed that the University did not follow the procedure provided for under sections 38 or 14 of Visva-Bharati Act, 1951 while initiating disciplinary proceedings against a professor or an Adhyapaka. The Court further noted that the issue of the show-cause notice, the Memorandum of Charges and the order of suspension are contrary to the Act and the Statutes of the University since a Registrar cannot initiate any disciplinary action against an Adhyapaka pursuant to clause 5.1 of the Statutes of the University. 

"..even if it is assumed that the Registrar was acting under the direction of the Vice-Chancellor in issuing the impugned notices, the procedure provided under sections 38 and 14 of the Act, which empowered the Vice-Chancellor to suspend an Adhyapaka or take steps against an employee, has not been followed", the Court observed further. 

It was further opined that there is no indication in any of the impugned notices as to who has directed the Registrar to take the steps complained of. The Court further noted that there is no reference in the impugned documents that the Vice-Chancellor as directed issuance of the show-cause, the Charge- sheet or the order of suspension. The order of suspension mentions the "competent authority" without any further reference as to the identity of the authority, it was averred further. 

"The Office Notes relied upon by counsel appearing for the University shows handwritten endorsements with the words "Vice- Chancellor" on the notes but under the letter head of the "Visva-Bharati Establishment -III". These Notes cannot be taken as evidence that the Vice-Chancellor was the directing authority in connection with the main action", the Court opined further. 

Referring to the charge sheet, the Court further observed that it is 'vague and devoid of particulars'. The Court further noted that the term misconduct has not been defined in the Visva- Bharati Act, 1951 read with the Statutes of the University and thus it was imperative for the person competent to issue the Charge-sheet to define the term misconduct and in what manner the petitioner was guilty of it.

"Significantly, the list of documents by which the article of charge was framed only consists of the show-cause notice and the reply of the petitioner to such show-cause notice. There are no other documents included in the list for proposing the charge of misconduct against the petitioner", the Court noted further. 

Reliance was also placed on the Supreme Court decision in A.L. Kalra v. Project and Equipment Corporation of India Ltd wherein it had been held that where the relevant statute does not define the term, it is obligatory on the employer to specify and define the term with decision where misconduct entails penal consequences. Reference was also made to the Supreme Court decision in Union of India v. J. Ahmed wherein misconduct has been described as that arising from ill motive and not acts of negligence, errors of judgment or innocent mistake.

Accordingly, the Court revoked the impugned show-cause notice dated February 24, 2021, the Charge-sheet dated February 27, 2021 and the orders of suspension commencing from March 13, 2021. 

Case Title: Rajesh K.V. @ Rajesh Kaleerakath Venugopal v. Visva-Bharati & Ors

Case Citation: 2022 LiveLaw (Cal) 100 

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