IN THE HIGH COURT AT CALCUTTA 

CONSTITUTIONAL WRIT JURISDICTION 

APPELLATE SIDE 

Present: 

The Hon’ble Justice Moushumi Bhattacharya  

WPA 1668 of 2022 

Rajesh K.V. @ Rajesh Kaleerakath Venugopal  

Vs. 

Visva-Bharati & Ors. 

For the Petitioner : Mr. Arunava Ghosh, Adv.  Mr. Puspal Chakraborty, Adv. 

 Ms. Prisanka Ganguly, Adv.  

For the University : Mr. Pranit Kumar Bag, Adv.  Mr. Anuj Kumar Mishra, Adv. 

Last Heard on : 16.03.2022. 

Judgment on : 30.03.2022. 

Moushumi Bhattacharya, J. 

1. The petitioner prays for quashing of a show-cause and a Charge sheet dated 24th and 27th February, 2021 respectively and orders of  suspension issued to the petitioner from 13th March, 2021 onwards. 

2. The petitioner is an Assistant Professor of Drama in the  Department of Rabindra Sangit, Dance and Drama, Sangit-Bhavana in  the Visva-Bharati University and was confirmed to the said post with  effect from 19th March, 2012. The petitioner is also the General 

Secretary of Visva-Bharati Adhyapaka Sabha (Visva-Bharati Teachers’  Association). 

3. The impugned show-cause was issued to the petitioner on 24th February, 2021 asking the petitioner to explain why appropriate  administrative measures will not be taken against him for negligence of  duty and misconduct. The said letter was issued by the Registrar  (Acting) of the University. The petitioner replied to the show-cause by a  letter dated 26th February, 2021 disputing the allegation of negligence of  duty and misconduct. The impugned Charge-sheet was issued against  the petitioner on 27th February, 2021 by the Registrar (Acting) of the  University; the Article of Charge states that the petitioner was involved  in negligence of duty and misconduct. The petitioner addressed his  defence to the Memorandum of Charges by way of a letter dated 8th March, 2021. The impugned order of suspension was issued thereafter  on 13th March, 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 which would be  evident from orders until 20th December, 2021 by which the period of  suspension was also extended. 

4. Learned counsel appearing for the petitioner takes a point of  jurisdiction in that the Registrar of the University was not empowered to  issue the impugned notices or take any disciplinary action against the petitioner. Counsel relies on The Visva-Bharati Act, 1951 for this 

purpose. It is also submitted that the Vice-Chancellor of the University  also does not have the power to initiate any disciplinary action against  any person of the petitioner’s position. Counsel submits that since the  Registrar did not have the jurisdiction to initiate disciplinary  proceedings under the Act, all subsequent steps would be null and void.  Counsel further submits that the Memorandum of Charge is vague as it  does not contain any particulars of misconduct by reason of which the  Charge-sheet should be quashed. 

5. Learned counsel appearing for Visva-Bharati University submits  that there has been no delegation of power or duty by the Vice Chancellor to the Registrar and that the impugned disciplinary  proceedings have been initiated and are being carried on through  express direction of the Vice-Chancellor. Counsel relies on Office Notes  to urge that the Registrar has been expressly authorized to take all steps  by the Vice-Chancellor which would be evident from the signature of the  latter on the Office Notes. Counsel relies on a Handbook published in  2019 by the University Grants Commission to submit that the Vice Chancellor has the power to delegate his powers in special  circumstances but that in the present case, there is no delegation of  power and the direction of the Vice-Chancellor have been duly  communicated to the petitioner by the Registrar of the University. 

6. Since learned counsel appearing for the petitioner had taken the  point of jurisdiction of the Registrar to issue the impugned notices, this  point should first be dealt with.

7. Under clause 5.1 of The Statutes of the University, as amended upto May, 2012- the Karma-Sachiva (Registrar), sub-clause 4(a) states  that the “the Karma-Sachiva (Registrar) shall have power to take  disciplinary action against such of the employees, excluding adhyapakas  of the University and other members of the academic staff, as may be  specified by the Karma-Samiti (Executive Council), by order, ….” 

8. Under section 3(c) of The Visva-Bharati Act, 1951, Adhyapaka includes a Professor, Leader, Lecturer and any other person engaged in  imparting instruction in relation to any learning process….”. The  petitioner is admittedly an Adhyapaka and hence the Registrar did not  have the power under the Statutes of the University to issue the  impugned notices of show-cause and suspension. 

9. The power to suspend an Adhyapaka or other member of the  academic staff is provided under section 38.A of the Act which includes  the power of the Upacharya (Vice-Chancellor) to place an Adhayapaka or a member of the academic staff under suspension upon fulfilment of  the conditions in section 38.A (1). 38.A (2) however requires the order of  suspension to be reported forthwith to the Karma-Samiti (Executive  Council) and 38.A (3) empowers the Karma-Samiti to revoke the order of  suspension if it is of the opinion that the circumstances of the case do  not warrant the suspension. The Upacharya is also empowered to take  immediate action in any matter under section 14 of the Act but such  action shall be reported to the authority which in turn may refer the 

matter to the Paridarsaka (Visitor) whose decision on the matter shall  thereafter be final. The second proviso to section 14(3) contains the  provision for appeal by an employee against the action taken by the  Upacharya. The appeal shall be placed before the Karma-Samiti 

(Executive Council) which has the power of confirming, modifying or  reversing the action taken by the Upacharya. The aforesaid provisions,  i.e., sections 38 and 14 stipulate a specific procedure for an order of  suspension of an Adhyapaka or a member of academic staff. The  procedure is democratic and takes due care against any arbitrary or  unilateral act of suspension of an Adhyapaka or of the employee of the  University by referring the same to the Karma-Samiti (Executive Council) 

which has a power to revoke the order of suspension or confirm/reverse  the action taken by the Upacharya

10. The admitted facts in the present case, as would be apparent from  the records, do not indicate that the University followed the procedure  provided for under sections 38 or 14. 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 (clause 5.1  of the Statutes). Further, 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 impugned order of suspension states, inter alia, that “the  undersigned is directed to communicate that Shri Rajesh K.V, Assistant  Professor, …… is placed under suspension with immediate effect”. There  is no indication in any of the impugned notices as to who has directed  the Registrar to take the steps complained of. In fact, there is no  reference in the impugned documents of the Vice-Chancellor being the  authority who has 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. 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 UGC Handbook and Gambhirdan K. Gadhvi vs State of  Gujarat; 2022 SCC OnLine SC 256, placing reliance on the handbook is  not an authority for the proposition that precipitate action can be taken  against an Adhyapaka or an employee of a University without having  the power to do so under the relevant Statutes. 

11. Moreover, the Charge-sheet is vague and devoid of particulars.  The Memorandum/Charge-sheet as stated is that “Shri Rajesh K.V., .…..  was involved in negligence of duty. Such act may be regarded as  misconduct.” The term misconduct has not been defined in the Visva 

Bharati Act, 1951 read with the Statutes of the University. Hence, 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 Supreme Court in A.L. Kalra vs Project and Equipment  Corporation of India Ltd.; (1984) 3 SCC 316 noticed the grey area in  cases of misconduct, particularly where the relevant statute does not  define the term, and held that it is obligatory on the employer to specify  and define the term with decision where misconduct entails penal  consequences. The Supreme Court in Union of India vs J. Ahmed; (1979)  2 SCC 286, quoted Stroud’s Judicial Dictionary to describe misconduct  as that arising from ill motive and not acts of negligence, errors of  judgment or innocent mistake (underlined for emphasis). 

12. 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; refer Chairman-cum M.D., Coal India Ltd. vs. Ananta Saha; (2011) 5 SCC 142.

13. In view of the above reasons, WPA 1668 of 2021 is allowed in  terms of prayers (a) and (b). The impugned show-cause notice dated 24th February, 2021, the Charge-sheet dated 27th February, 2021 and the  orders of suspension commencing from 13th March, 2021 are revoked.  The writ petition is disposed of accordingly.  

Urgent Photostat certified copies of this judgment, if applied for,  be given to the respective parties upon fulfillment of requisite  formalities.  

 (Moushumi Bhattacharya, J) 

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