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DR.MAA.SELVARASAN versus THE UNIVERSITY OF MADRAS

High Court of Madras

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Dr.Maa.Selvarasan v. The University of Madras - W.P.No.35181 of 2002 [2002] RD-TN 881 (14 November 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 14/11/2002

CORAM

THE HONOURABLE MR.JUSTICE P.D.DINAKARAN

W.P.No.35181 of 2002

Dr.Maa.Selvarasan .. Petitioner -Vs-

The University of Madras

rep. by its Registrar

University Buildings

Chepauk, Chennai-5. .. Respondent PRAYER: Petitions under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus as stated therein. For Petitioner : Mr.P.Chidambaram, Senior Counsel

For Mr.K.Venkatasubbaraju For Respondent : Mr.A.V.K.Ezhilmani :ORDER



Heard both sides.

2. Aggrieved by the proceedings of the respondent dated 15.7.2001 retiring the petitioner compulsorily from service, pursuant to the disciplinary proceedings initiated against him, the petitioner has preferred the above writ petition seeking a writ of Certiorarified Mandamus to call for the records of the respondent in proceedings bearing No.D1(A&B)/TE/2001/ 1640, dated 15.7.2001, quash the same and to consequently direct the respondent to permit the petitioner to continue in service in the respondent-University.

3. The petitioner is a Professor and Head of the Department of Contemporary Tamil Literature, from the time the said Department was created on 11.5.1998. Admittedly, the petitioner led the Madras University Teachers' Association (hereinafter referred to as "MUTA") and he was fighting for the benefit of the Madras University Teachers. From June, 1999, one Dr.Pon. Kothandaraman, who was the office bearer of the rival association, viz., Madras University Professors' Association, which had come into conflict with MUTA, was appointed as ViceChancellor. The rivalry and ill-will between the two associations was developing in all spheres of their respective activities, which, in turn, also entered into the affairs of the University, as alleged by the petitioner.

4. After Dr.Pon.Kothandaraman became the Vice-Chancellor, a meeting of the Senate of the University was conducted on 13.11.1999 chaired by Dr.Pon.Kothandaraman, Vice-Chancellor, and the petitioner who was representing MUTA, was repeatedly directed to withdraw from the meeting hall, but the same was resisted by the petitioner and his association members, which incident sowed the seed for initiation of the impugned disciplinary action, for the following charge:

"Consequent on the suspension of the newly instituted Department of Contemporary Tamil Literature, the membership of Dr.Maa.Selvaraasan in the Academic Council as well as in the Senate has ceased and he was also informed of this fact by letter No.V.1/AC&SEN/99/426, dated 24.5 .1999. Notwithstanding this, on 13.11.1999, Dr.Maa.Selvaraasan, along with Dr.S.Govindasamy, Professor, Department of Economics, PG Extension Centre, Vellore, who are not members of the Senate, unauthorisedly entered the meeting hall of the Senate when the proceedings of the Senate were in progress. In spite of the repeated directions from the Chair that the non-members of the Senate should withdraw from the hall, he did not do so and caused adjournment of the rest of the proceedings of the Senate. Dr.Maa.Selvaraasan was thus guilty of gross indiscipline and conduct unbecoming of an employee of the University."

5. Even though disciplinary action was initiated against the petitioner only on the above single charge, which is referred to as Charge No.III in the impugned disciplinary proceedings, the former ViceChancellor, who was all the while representing the rival association, framed three more charges, without the sanction of the Syndicate by his proceedings dated 22.12.1999 and 29.12.1999 and proceeded with the impugned disciplinary action on the following four charges:

CHARGE:I

In spite of written instructions issued in Letter No.D.1(A)/ TE/99/10 , dated 24.2.1999 and also in the letter No.D.1(A)/ TE/99/392 dated 2 4.2.1999 to all the Heads of Departments for circulation among the teachers worknig under their control including Dr.Maa.Selvaraasan, based on the resolution of the Syndicate dated 12.2.1999, prohibiting any form of demonstration, fasting, meeting, etc. by the staff of the University inside the Campus, Dr.Maa.Selvaraasan, led the MUTA members to observe a fast in front of the Centenary Building in connection with certain demands of MUTA on 25.2.1999 on which date the Syndicate was scheduled to meet and was thus guilty of a breach of discipline.

CHARGE:II

After the Syndicate meeting was over on 25.2.1999, Dr.Maa. Selvaraasan, conducted himself in a highly indisciplined and indecorous manner before the Vice-Chancellor, threatened the Vice-Chancellor and prevented him from leaving the Office in the manner stated below:

"After the Syndicate meeting was over, Dr.Maa.Selvaraasan, along with other members of MUTA demanded that the Vice-Chancellor (Dr.P.T. Manoharan) should issue the promotion orders to the teachers based on the resolution of the Syndicate the very same night (i.e., on 25.2.1999) however late it might be. When the Vice-Chancellor expressed his inability to do so, Dr.Maa.Selvaraasan threatened the Vice-Chancellor that he (Dr.Maa.Selvaraasan) would not allow the Vice-Chancellor to leave the campus. In pursuance of this threat, Dr.Maa.Selvaraasan and about 25 other teachers under his leadership blocked the exit for the Vice-Chancellor's car. Dr.Maa.Selvaraasan refused to vacate the site to enable the Vice-Chancellor to go out in spite of the ViceChancellor personally explaining to the demonstrators the points regarding the issuance of the orders. The Vice-Chancellor was finally able to leave the premises only after 9.00 p.m. by which time Dr.Maa. Selvaraasan took the demonstrators to hold a meeting in the Senate Hall. Dr.Maa.Selvaraasan and the demonstrators vacated the premises only after 11.30 p.m. that night after they succeeded in getting the promotion orders they wanted from the Registrar in-charge."

CHARGE:III

Consequent on the suspension of the newly instituted Department of Contemporary Tamil Literature, the membership of Dr.Maa.Selvaraasan in the Academic Council as well as in the Senate has ceased and he was also informed of this fact by letter No.V.1/AC&SEN/99/426, dated 24.5.1999. Notwithstanding this, on 13.11.1999, Dr.Maa.Selvaraasan, along with Dr.S.Govindasamy, Professor, Department of Economics, PG Extension Centre, Vellore, who are not members of the Senate, unauthorisedly entered the meeting hall of the Senate when the proceedings of the Senate were in progress. In spite of the repeated directions from the Chair that the non-members of the Senate should withdraw from the hall, he did not do so and caused adjournment of the rest of the proceedings of the Senate. Dr.Maa.Selvaraasan was thus guilty of gross indiscipline and conduct unbecoming of an employee of the University. CHARGE:IV

Consequent to the decision of the Governor-Chancellor withholding the assent for the amendment to the Statutes for the institution of the Department of Contemporary Tamil Literature, the institution of the said Department thus becoming ab initio void, the Department was suspended and Dr.Maa.Selvaraasan was reverted back to his original position as Professor in the Department of Tamil Language with immediate effect and orders were issued to him accordingly in proceedings No.D.1( B)/TE/99/1161, dated 18.5.1999. Dr.Maa.Selvaraasan refused to comply with the orders and is thus guilty of gross indiscipline.

6. Pursuant to the said disciplinary action, the petitioner was served with an order of suspension dated 19.11.1999, and the same was quashed by the order of the learned Single Judge dated 18.2.2000 in W. P.Nos.18809 and 18810 of 1999. But, on appeal in W.A.Nos.501 and 502 of 2000, this Court, by judgment dated 24.3.2000 set aside the order of the learned Single Judge dated 18.2.2000 made in W.P.Nos.18809 and 18810 of 1999, and directed the authorities to expedite the disciplinary action. 7. Thereafter, the former Vice-Chancellor appointed one Thiru B. Vijayaraghavan, a Retired I.A.S. Officer, as Enquiry Officer, by proceedings dated 20.4.2000, to hold an enquiry, and the same was communicated to the petitioner on the same day. The petitioner submitted his objection on 21.12.2000 to the appointment of an outsider as an Enquiry Officer stating that outsiders cannot be appointed as Enquiry Officer as per the Act, Statutes, Ordinances and Resolutions of the Board; the powers of the Syndicate, which is a competent authority to take disciplinary action against the University Professors, Readers and Lecturers, and the Teachers and servants of the University, have not been delegated to the Vice-Chancellor and therefore, the appointment of an outsider as an Enquiry Officer by the Vice-Chancellor is totally without jurisdiction. 8. Notwithstanding the objection, Enquiry Officer proceeded with the enquiry and found the petitioner guilty of all the charges by his proceedings dated 7.2.2001, which was placed before the Syndicate on 22.6.2001. Having received the report of the Enquiry Officer dated 7.2.2001, the petitioner submitted his objection to the enquiry report on 9.7.2001 and the same was considered by the Syndicate in the meeting held on 13.7.2001, wherein the Syndicate resolved to retire the petitioner compulsorily, which culminated into the impugned order of compulsory retirement dated 15.7.2001. Hence, the above writ petition.

9. The Registrar of the University has filed a counter affidavit on behalf of the respondent. The facts narrated by the petitioner against the then Vice-Chancellor, Dr.Pon.Kothandaraman are not traversed specifically since the former Vice-Chancellor had already retired and he has not been impleaded as a party respondent. But, the fact that the petitioner made an objection on 21.12.2000, objecting the appointment of an outsider as Enquiry Officer is not disputed. According to the respondent/University, there is no procedural error in the impugned disciplinary proceedings, the appointment of an outsider as an Enquiry Officer is fully justified as per the provisions of the Act and in any event the University is empowered to apply the Tamil Nadu Civil Services (Discipline & Appeal) Rules in the impugned disciplinary proceedings, as per the resolution passed by the University on 22.8.1 997.

10. Mr.P.Chidambaram, learned senior counsel appearing for the petitioner, assails the impugned order of compulsory retirement dated 15.7 .2001 on the following grounds:

(i) The initiation of the impugned disciplinary action by the former Vice-Chancellor is bad in law due to the mala fide on the part of the former Vice-Chancellor against the petitioner and therefore, the entire disciplinary action is liable to be held illegal;

(ii) Where a disciplinary action was initiated against the petitioner, only with respect to a single charge, viz., Charge No.III, referred to above, the Enquiry Officer ought not to have gone into the other three charges without any sanction of the Syndicate; and in any event, none of the charges referred to above could be construed as a grave misconduct with reference to the conduct Rules warranting a punishment of compulsory retirement, which is shockingly disproportionate to the charges leveled against the petitioner, assuming the petitioner is held guilty of the said charges; (iii) The appointment of an outsider, viz., Thiru B.Vijayaraghavan, a Retired I.A.S. Officer, who is not a member of the Syndicate, to hold an enquiry into the charges leveled against the petitioner is contrary to Section 19(y) of the Act;

(iv) Mr.P.Chidambaram, learned senior counsel, contends that when an act, in the instant case the disciplinary action, is expected to be done in a particular manner prescribed under the statute, it should be done in the same manner, but not otherwise, as held in STATE OF U.P. Vs. SINGAHARA SINGH reported in AIR 1964 SC 358;

(v) Thrust is made on Section 19(h) of the Act, which empowers the Syndicate to suspend and dismiss the University Professors, Readers and Lecturers, and the Teachers and servants of the University; and Section 19(y) of the Act, which empowers the Syndicate to delegate any of its powers to the Vice-Chancellor, to a Committee from among its own members or to a Committee appointed in accordance with the Statutes;

(vi) Where a special power is provided under Section 19(h) read with Section 19(y) of the Act, there is no scope to invoke the powers conferred under Section 42 of the Act. In this regard, Mr.P.Chidambaram, learned senior counsel, invited my attention to the resolution of the Syndicate dated 22.10.1999, which deals with the delegation of powers of the Syndicate to the Vice-Chancellor;

(vii) Mr.P.Chidambaram, learned senior counsel for the petitioner, further elaborates his contention that when the statute prescribes the manner in which a particular act should be done, viz., to hold an enquiry by Vice-Chancellor himself, or by a Committee from among its own members, it cannot be done in any other manner even as per the provisions of the Tamil Nadu Civil Services (Discipline & Appeal) Rules and it is therefore contended that the resolution dated 22.8.1997 to follow Tamil Nadu Civil Services (Discipline & Appeal) Rules in the case of disciplinary action against employees of the University is itself null and void;

(viii) Mr.P.Chidambaram, learned senior counsel, inter alia contends that even as per the memorandum dated 19.10.2000 issued by the Vigilance Commissioner and Commissioner for Administrative Reforms, Vigilance Commission III Secretariat, Government of Tamil Nadu, an outsider must not be appointed as an Enquiry Officer for Departmental enquiries, and the enquiry cannot be done by an outsider, and therefore, the appointment of an outsider as an Enquiry Officer, in the instant case, is not valid in law; and (ix) Finally, it is contended by Mr.P.Chidambaram, learned senior counsel, that the powers of the Senate conferred under Section 15 of the Act to review the impugned action of the Syndicate cannot be curtailed, in spite of the decision of the Senate dated 27.10.2001 proposing to review the matter, merely on the ground that the impugned decision had already been approved by the Chancellor.

11.1. Per contra, Mr.Ezhilmani, learned counsel for the respondent, while fairly submits that neither the present Vice-Chancellor nor the University has got any grievance against the petitioner, and concedes that there was ill-will and rivalry between the former ViceChancellor and the petitioner, which is a matter of record, effectively contends that the initiation of disciplinary action by the former ViceChancellor is justified as he has got the power to initiate the disciplinary action in view of the delegation in his favour based on the proceedings dated 17.2.1979, which is supported by the subsequent resolution of the Syndicate dated 22.10.1999. 11.2. Mr.Ezhilmani, learned counsel for the respondent, also traces the power of the Syndicate to delegate the power to the ViceChancellor, who, in turn, can delegate the power to an outsider to hold an enquiry under Section 42 of the Act read with the resolutions dated 17.2.1979 and 22.10.1999.

11.3. Mr.Ezhilmani, learned counsel for the respondent, further contends that in view of the resolution of the Syndicate dated 22.8.1997 , it cannot be said that the impugned proceedings is vitiated, as the University is entitled to follow the provisions of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, as there is no specific provision under the statute for the same.

11.4. The further argument of Mr.Ezhilmani, learned counsel for the respondent is that, even though the order of suspension dated 19.11.1 999 was related to a single charge, viz., Charge No.III, and thereafter, the then Vice-Chancellor framed other three charges, viz., Charge Nos.I, II and IV, it cannot be contended that the Enquiry Officer has no jurisdiction to enquire into all four charges, as all the four charges were communicated to the petitioner even before the appointment of the Enquiry Officer, and the entire disciplinary action initiated by the former Vice-Chancellor as well as the enquiry conducted by the Enquiry Officer with regard to all four charges were ratified by the Syndicate before taking the impugned decision of compulsory retirement on 13.7.2001.

11.5. Lastly, Mr.Ezhilmani, learned counsel for the respondent contends that, even though the Senate had opined to review the entire matter, the University is right in not meddling with the issue, as the order of compulsory retirement of the petitioner dated 15.7.2001 has already been approved by the Chancellor.

12. I have bestowed my careful consideration to the submissions of both sides.

13. The following issues arise for my consideration from the above rival contentions:

(i)Whether the mala fide attributed against the former ViceChancellor for having initiated the impugned disciplinary action vitiates the impugned decision of the compulsory retirement of the petitioner by the Syndicate? (ii)Whether the impugned disciplinary proceedings vitiates with respect to the charges, namely Charge No.I, II and IV, as they were not placed for the consideration of the Syndicate for sanction before initiating the impugned disciplinary action and the enquiry there-under? (iii)Whether the impugned disciplinary action as well as the consequential decision of compulsory retirement by the Syndicate is bad as the same is based on the report of an Enquiry Officer, who is not a member of the Syndicate, as the very appointment of the Enquiry Officer is contrary to Section 19(y) of the Act?

(iv)Whether or not the Senate is empowered to review the impugned act of the Syndicate exercising the powers conferred under Section 15 of the Act? and (v)To what relief the petitioner is entitled to? 14.1. Issue (i) - Whether the mala fide attributed against the former Vice-Chancellor for having initiated the impugned disciplinary action vitiates the impugned decision of the compulsory retirement of the petitioner by the Syndicate?

and

Issue (ii) - Whether the impugned disciplinary proceedings vitiates with respect to the charges, namely Charge No.I, II and IV, as they were not placed for the consideration of the Syndicate for sanction before initiating the impugned disciplinary action and the enquiry there-under? 14.2. The impugned order of compulsory retirement dated 15.7.2001 is assailed on the ground of mala fide. Mr.P.Chidambaram, learned senior counsel, seeks to establish mala fide by pleading that the former Vice-Chancellor, Dr.Pon.Kothandaraman, who had initiated the disciplinary action against the petitioner was an active member of the Madras University Professors' Association, which is a rival association to that of MUTA, led by the petitioner. However, it is to be noted that the former Vice-Chancellor, against whom the petitioner had alleged mala fide had already retired from service and the former ViceChancellor had not been impleaded as a party in this writ petition. The petitioner does not allege any mala fide against the Syndicate, which is a statutory body. The contextual fact that the Syndicate, a statutory body, ratified the action of the former Vice-Chancellor, before taking the impugned decision of compulsory retirement on 13.7.2001, cannot be lightly disregarded. Since no mala fide is alleged against the decision of the Syndicate, ratifying the action of the former Vice-Chancellor, I am unable to appreciate the contentions of Mr.P. Chidambaram, learned senior counsel, that the very disciplinary action initiated against the petitioner is attracted by an element of mala fide attributed against the former Vice-Chancellor, because the expression malice or mala fide against the former Vice-Chancellor itself is not sufficient to interfere with the decision of the Syndicate, a statutory body, ratifying the action of the former Vice-Chancellor, before taking the impugned decision of compulsory retirement on 13.7.2001. Malice is a question of fact. Mala fide is not meaningless jargon. It has proper connotation. The expression malice or mala fides has to be established from the records. Ther e cannot possibly be any set of guidelines in regard to proof mala fides. Mere user of the word mala fide would not by itself make a petition entertainable, particularly when no mala fide could be attributed against the Syndicate, a statutory body. 14.3. Similarly the contention that the disciplinary action was initiated against the petitioner with regard to a single charge initially, but later on three more charges were framed against the petitioner by the former Vice-Chancellor which were enquired into by the Enquiry Officer without the sanction of the Syndicate, also do not weigh, in my considered opinion, in view of the decision of the Syndicate ratifying the action of the former Vice-Chancellor, before taking the impugned decision of compulsory retirement on 13.7.2001.

14.4. Issues (i) and (ii) are answered accordingly. 15.1. Issue (iii): Whether the impugned disciplinary proceedings vitiates with respect to the charges, namely Charge No.I, II and IV, as they were not placed for the consideration of the Syndicate for sanction before initiating the impugned disciplinary action and the enquiry there-under? 15.2. The Madras University Act, 1923, as amended from time to time, has been enacted to reorganize the University of Madras with the view to establishing a teaching and affiliating University at Madras while enabling the University to continue to exercise due control over the quality of the teaching given by colleges, which are affiliated to or approved by the University of Madras.

15.3. Section 13 of the Act prescribes the following authorities of the University:

(1) The Senate,

(2) The Syndicate,

(3) The Academic Council,

(4) The Faculties,

(4-A) The Finance Committee,

(5) The Boards of Studies, and

(6) Such other bodies as may be declared by the Statutes to be authorities of the University.

15.4. Section 18 of the Act deals with the constitution of the Syndicate.

15.5. Section 19 of the Act prescribes the powers of the Syndicate, of which, we are concerned with Sections 19(a), 19(g), 19(h) and 19(y), which are referred to below:

Section:19 - Powers of the Syndicate:

The Syndicate shall have the following powers, namely:- (a) to make Ordinances and amend or repeal the same; (b) to (f) ...

(g) to appoint the University Professors and Readers and Lecturers and the Teachers and servants of the University, fix their emoluments, if any, define their duties and the conditions of their service; and provide for the filling up of temporary vacancies;

(h) to suspend and dismiss the University Professors, Readers and Lecturers, and the Teachers and servants of the University; (i) to (x) ...

(y) to delegate any of its powers to the Vice-Chancellor, to a Committee from among its own members or to a Committee appointed in accordance with the Statutes.

15.6. Section 42 of the Act provides for the constitution of Committee by the authorities of the University that are referred under Section 13 of the Act referred to above. Section 42 of the Act reads as follows: Section 42: Constitution of Committee:

All the authorities of the University shall have power to appoint committees and to delegate to them such of their powers as they deem fit; such committees shall, unless there be some special provision in the Act to the contrary, consist of such members of the authority concerned and of such other persons, if any, as the authority in each case may think fit. (emphasis supplied)

15.7. From the above scheme of the Act, the Syndicate is empowered to make Ordinances and amend or repeal the same; to define the duties and the conditions of service of University Professors and Readers and Lecturers and the Teachers and servants; to take disciplinary action which includes to suspend and dismiss the University Professors, Readers and Lecturers, and the Teachers and servants of the University. The Syndicate is also empowered to delegate any of its powers to the Vice-Chancellor, to a Committee from among its own members or to a Committee appointed in accordance with the Statutes. 15.8. It is by exercising such powers conferred under Sections 19(g), 19(h) and 19(y) of the Act, referred to above, the Syndicate resolved to delegate the powers to conduct enquiries to the Vice-Chancellor, either by himself or a Committee constituted by him, by resolution dated 22.10.1999. 15.9. In this connection, I am obliged to refer Section 19(y) of the Act, once again, which reads as follows:

Section:19 - Powers of the Syndicate:

The Syndicate shall have the following powers, namely:- (a) to (x) ...

(y) to delegate any of its powers to the Vice-Chancellor, to a Committee from among its own members or to a Committee appointed in accordance with the Statutes.

15.10. Section 19(y) of the Act empowers the Syndicate to delegate its powers to the Vice-Chancellor, or to a Committee from among its own members, or to a Committee in accordance with the Statute. The Syndicate by resolution dated 22.10.1999 resolved to delegate the powers to conduct enquiry to the Vice-Chancellor by himself, or to a Committee constituted by him, only by exercising the powers conferred under Section 19(y) of the Act, but not otherwise.

15.11. A careful reading of Section 19(y) of the Act, as rightly pointed out by Mr.P.Chidambaram, learned Senior Counsel, is that the delegation could be either in favour of the Vice-Chancellor or to a Committee from among its own members or a Committee appointed in accordance with the Statutes. Concedingly, there is no provision under the Statute for constitution of a committee to enquire into the charges against the Professors, Lecturers, Readers and the Teachers and servants of the University. Therefore, assuming, the Syndicate delegated its powers to the Vice-Chancellor to hold an enquiry into the charges against the Professors, Lecturers, Readers and the Teachers and servants of the University by resolution dated 22.10.1999, such powers could be exercised either by the Vice-Chancellor himself or by a Committee from among the members of the Syndicate, but not by an outsider. The resolution of the Syndicate dated 22.10.1999 therefore, is made only by exercising the powers under Section 19(y) of the Act, but not under Section 42 of the Act, which could be exercised by the authorities of the University only in individual cases.

15.12. A reading of the resolution dated 22.10.1999 where the Syndicate resolved to delegate the powers to conduct the enquiry to ViceChancellor either by himself or through a Committee constituted by him makes it clear that the same was intended only to govern the enquiries sought to be conducted pursuant to the disciplinary action initiated by the Syndicate against Professors, Lecturers, Readers and the Teachers and servants of the University. Since Section 19(g) of the Act is a special provision which empowers the Syndicate to define the duties and conditions of service of Professors, Lecturers, Readers and the Teachers and servants of the University, and Section 19(h) of the Act further specifically empowers the Syndicate to suspend and dismiss the Professors, Lecturers, Readers and the Teachers and servants of the University, any resolution of the Syndicate in connection with such powers provided under Sections 19(g) and 19(h) of the Act has to be construed only with reference to Section 19(y) of the Act, but not with reference to Section 42 of the Act. Therefore, any resolution of the Syndicate, much less the decision of the Vice-Chancellor, pursuant to the resolution dated 22.10.1999 either by not conducting the enquiry by himself or by not appointing a Committee from among the members of the Syndicate, but by appointing an outsider as an Enquiry Officer, is contrary to Section 19(y) of the Act, and such resolution / decision of the Syndicate, much less the Vice-Chancellor are held to be outside the purview of Section 42 of the Act, which is not attracted with respect to the action of the Syndicate governed under the special provisions provided under the Act. 15.13. It is well settled in law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time, vide Taylor V. Taylor reported in (1876) 1 Ch D 426. The whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, vide Maxwell's Interpretation of Statutes, 11th Edition, Pages 362 to 363. The above Rule will be attracted with full force in the present case, because there is no controversy that Section 19 of the Act specifically prescribes the powers of the Syndicate; Section 19(g) of the Act empowers the Syndicate to define the duties and conditions of service of Professors and Readers and Lecturers and Teachers and Servants of the University; Section 19(h) of the Act empowers the Syndicate to suspend or dismiss the University Professors, Reader and Lecturers, and the Teachers and Servants of the University, which includes the disciplinary control vested on the Syndicate over the University Professors, Reader and Lecturers, and the Teachers and Servants of the University, and Section 19(y) empowers the Syndicate to delegate such powers conferred on the Syndicate under Section 19(h), including the disciplinary powers, to the Vice-Chancellor or a Committee from among its own members.

15.14. I am, therefore, convinced with the arguments of Mr.P. Chidambaram, learned senior counsel that once the Syndicate proposes to delegate the powers to the Vice-Chancellor, it has to be done only in the manner prescribed under Section 19(y) of the Act, according to which, the powers can be delegated to the Vice-Chancellor and if the Vice-Chancellor still proposes to delegate the powers, it can be delegated only to the Committee among the members of the Syndicate or alternatively to a Committee appointed in accordance with the statutes, as there is no provision under the statute to constitute a committee for the disciplinary action at all, and therefore the last limb of Section 19(y) of the Act is inoperative. 15.15. I am unable to appreciate the attempt made by Mr.Ezhilmani, learned counsel for the respondent to justify the impugned disciplinary proceedings based on the resolution dated 22.8.1997 under the provisions of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, as it is well settled in law that, when a statute prescribes the manner in which a particular act should be done, it should be done in the same manner, but not otherwise, vide TAYLOR Vs. TAYLOR reported in (1 876) 1 Ch D 426: 45 LJCh 373; LORD ROCHE IN NAZIR AHMAD Vs. KING EMPEROR reported in 1936 (63) IA, RAO SHIV BAHADUR SINGH Vs. STATE OF RAJASTHAN reported in AIR 1961 SC 1527; STATE OF U.P. Vs. SINGAHARA SINGH reported in AIR 1964 SC 358; and BABU VERGHESE Vs. BAR COUNCIL OF KERALA reported in 1999 (II) CTC 722. 15.16. In any event, even as per the memorandum dated 19.10.2000 issued by the Vigilance Commissioner and Commissioner for Administrative Reforms, Vigilance Commission III Secretariat, Government of Tamil Nadu, an outsider must not be appointed as an Enquiry Officer for Departmental enquiries, as rightly pointed out by Mr.P.Chidambaram, learned senior counsel, and the above stand taken by the Government of Tamil Nadu under the provisions of the Tamil Nadu Civil Services ( Discipline & Appeal) Rules is not disputed by Mr.Ezhilmani, learned counsel for the respondent. Even on that account, I am satisfied that the appointment of an outsider as an Enquiry Officer to go into the charges framed against the petitioner is not sustainable. 15.17. Issue (iii) is answered accordingly.

16.1. Issue (iv) - Whether or not the Senate is empowered to review the impugned act of the Syndicate exercising the powers conferred under Section 15 of the Act?

16.2. Section 14 of the Act deals with the constitution of the Senate, which is supreme governing body of the University. 16.3. Section 15 of the Act reads as follows: Section:15 - The Senate to be the Supreme Governing body: The senate shall be supreme governing body of the University and shall have power to review the action of the Syndicate and of the Academic Council save where the Syndicate and the Academic Council have acted in accordance with powers conferred on them under this Act, the Statutes, the Ordinances or the Regulations and shall exercise all the powers of the University not otherwise provided for and all powers requisite to give effect to the provisions of this Act;

Provided that if any question arises whether the Syndicate or the Academic Council has acted in accordance with such powers as aforesaid or not, the question shall be decided by a resolution passed by twothirds of the number of the members present and voting at a meeting of the Senate and the decision shall be final.

(emphasis supplied)

16.4. Section 16 of the Act prescribes the powers of the Senate. As per Section 16(1) of the Act the Senate is empowered to make Statutes and amend or repeal the same.

16.5. Section 29 of the Act prescribes the provisions for which the Statutes could be made by the Senate, of which it is relevant to refer Sections 29(e) and 29(i) of the Act, which read as follows: Section 29: Subject to the provisions of this Act, the Statues may provide for all or any of the following matters, namely:- (a) to (d) ...

(e) the powers, duties and conditions of service of the officers of the University other than the Chancellor and the Pro-Chancellor; (f) to (h) ...

(i) the classification and the mode of appointment of the teachers of the University.

16.6. From the above provisions of the Act, it is clear that the Senate is the supreme governing body of the University. It is empowered to review the action of the Syndicate, save where the Syndicate have acted in accordance with the powers conferred on them under the Act, Statutes, Ordinances or the Regulations. In other words, if the action of the Syndicate is contrary to the powers conferred on the Syndicate under the Act, Statutes, Ordinances or Regulations, the Senate is empowered to review such action of the Syndicate.

16.7. I am, therefore, of the considered opinion, that the Senate being a Supreme Governing Body is empowered to review the action of the Syndicate, if such action of the Syndicate is contrary to the powers conferred under the Act.

16.8. Issue (iv) is answered in positive.

17.1. Issue (v): To what relief the petitioner is entitled to? 17.2. Having held that the appointment of Thiru B.Vijayaraghavan, a Retired I.A.S. Officer, an outsider, who is not a member of the Syndicate, as an Enquiry Officer, by the former Vice-Chancellor is contrary to Section 19(y) of the Act, I am obliged to quash the appointment of the Enquiry Officer as well his consequential finding holding the petitioner guilty of the charges, and consequently the decision of the Syndicate in its proceedings dated 15.7.2001 retiring the petitioner compulsorily is liable to be set aside, and accordingly the same is quashed.

17.3. Issue (v) is answered accordingly. In the result, this writ petition is allowed as prayed for. No costs. Index : Yes

Internet : Yes

sasi

To:

The University of Madras

rep. by its Registrar

University Buildings

Chepauk, Chennai-5.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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