80 11.7.16
Sc

W. P. No. 25523 (W) OF 2014
------------

Dr. Surajit Ch. Mukhopadhyay
-vs.The W.B.N.U.J.S & Ors.

Mr. Kishore Datta
Mr. Biswaroop Bhattacharya
Ms. Tannistha Bandyopadhyay.
... For the Petitioner.
Mr. Pratik Dhar
Mr. Pappu Adhikary
Mr. Samir Halder
Mr. Debangshu Ghorai.
...For the Respondents
No. 1 to 4.

The petitioner is the Registrar of the West Bengal National University of
Juridical Sciences (hereafter the university).
A charge-sheet dated 27th August, 2014 was issued to him by the ViceChancellor

of

the

university.

The

imputations

primarily

related

to

mismanagement of funds by the petitioner as well as non-adherence to the
financial rules of the university, while holding office as its registrar. The
petitioner was simultaneously placed under suspension by the vice-chancellor.
The petitioner in his response to the charge-sheet had questioned the
jurisdiction of the vice-chancellor to draw up disciplinary proceedings against
him apart from denying and disputing the material allegations levelled therein.
The vice-chancellor was not satisfied with the response of the petitioner
and proceeded to appoint an inquiry officer.
It was at such stage that this writ petition was presented by the petitioner
on 3rd September, 2014 seeking quashing of the charge-sheet as well as the order
of suspension.
After hearing the parties on a couple of days, the first effective order on the
writ petition was passed on 22nd September, 2014. The points taken by the
petitioner

 while mounting a challenge to the action of the vice-chancellor in issuing the
impugned charge-sheet to him were noticed. The first one was relating to the
jurisdiction of the vice-chancellor, the second pertained to mala fide action and
the third was that the charge-sheet had been issued with closed mind. While
declining the prayer for stay of disciplinary proceedings, this Bench had the
occasion to observe as follows :“The allegations levelled against the petitioner are indeed serious. What is
equally serious is the petitioner’s allegation that the Vice Chancellor being a signatory to
all the documents that the petitioner had signed, cannot escape the liability of facing
disciplinary proceeding.
To my mind, these are matters which are not to be examined at this stage.
However, the seriousness of the allegations cannot be simply ignored; on the contrary,
the same merit identification of whoever is responsible for mismanagement of funds, be it
the Vice Chancellor or the petitioner or any other person acting jointly or severally and
appropriate action being taken to bring the offender to book. The University is an
educational institution of repute with the Hon’ble Chief Justice of India as the Chancellor
and any attempt to tarnish its image must be viewed with extreme concern.
It is in these exceptional facts and circumstances that a free, fair, proper and
meaningful inquiry into the allegations levelled against the petitioner ought to be
conducted. Without meaning any disrespect to the inquiry officer, who has already been
appointed by the Vice Chancellor, I propose to interfere at this stage only on the limited
aspect of nominating an inquiry officer to take the disciplinary proceeding initiated
against the petitioner to its logical conclusion. With that in view, I appoint Hon’ble
Justice Provendu Narayan Sinha (Retd.) as the inquiry officer to inquire into the charges
levelled against the petitioner and to submit a report for consideration of the Executive
Council of the University.”
……………………………………………………………….
The petitioner shall have time till October 13, 2014 to reply to the charges. The
inquiry shall commenced from October 14, 2014 or soon thereafter, subject to
convenience of Justice Sinha and tender of evidence, oral and documentary be completed
by the parties preferably by January 15, 2015.
In the inquiry, the petitioner shall be entitled to reasonable, adequate and
effective opportunity of raising defence including opportunity to adduce witnesses in
defence. However, the prayer for legal assistance made by Mr. Datta is refused at this
stage. It is made clear that if the University proposes to appoint a presenting officer who
is a law graduate and/or a person who is having a legally trend mind to conduct the
prosecution case, the petitioner shall be entitled to make a prayer before Justice Sinha
for legal representation and the same may be considered and disposed of in accordance
with law.
The writ petition is kept pending for the dual purposes of expediting the inquiry, if
call for, and considering Mr. Datta’s prayer for revocation of the order of suspension.”

In due course of time, inquiry by Hon’ble Justice P. N. Sinha (Retd.)
commenced. However, the inquiry could not be completed within the time frame

 mentioned in the order dated 22nd September, 2014 and extensions having been
sought for, the same were granted. The conclusion of the inquiry not being in
sight, a prayer was made on behalf of the petitioner on 18th March, 2015 to
revoke the order of suspension. Relevant portion from the order passed on 18th
March, 2015 is extracted below :“5.
It would appear from the order dated September 22, 2014 of this Bench that the
inquiry into the charges framed against the writ petitioner was allowed to be taken to its
logical conclusion upon ensuring a free, fair, proper and meaningful inquiry by
appointment of a retired Judge of this Court. Such direction had been made with the
view to obliterate any sense of prejudice/bias that the writ petitioner may have had
against the Vice-Chancellor of the applicant no.1/university, and as alleged in the writ
petition. It was the endeavour of this Bench to complete the inquiry within the shortest
possible time and in view thereof the writ petition was kept pending for the dual
purposes of expediting the inquiry as well as to consider the writ petitioner’s prayer for
revocation of the order of suspension, if it were found that the inquiry had not
progressed at all.
……………………………………………………………………….
16.
The writ petitioner, however, shall be at liberty to renew his prayer for stay of
the suspension order if satisfactory progress of inquiry is not achieved in the mean while
for
reasons
solely
attributable
to
the
applicant
no.1/university.
…………………………………………………..”

In the meanwhile, the inquiry conducted by Justice Sinha progressed.
Certain interim directions were issued to facilitate early completion of the
inquiry. On completion thereof, Justice Sinha submitted his report of inquiry
before the Executive Council of the University.
When the writ petition was considered by this Bench on 19th February,
2016, it was recorded that the report of inquiry found most of the charges
levelled against the petitioner proved but copy of the inquiry report had been
furnished to him without seeking his response thereto. This Bench, while
permitting the petitioner to respond to the inquiry report, granted him time till
24th March, 2016. It was also observed that the Executive Council shall decide on
the desirability of accepting the inquiry officer’s report upon consideration of the
petitioner’s response. The concluding sentence of the penultimate paragraph of
the order recorded as follows :“…………………………………………………………………………………………….Howe
ver, in such eventuality, the order of penalty shall not be given effect to without

 obtaining leave of this Court since the jurisdiction of the Executive Council to initiate
proceedings against the petitioner is in question in this writ petition."

This Bench shall be failing in its duty to record that on that date, it erred
in its perception of the exact subject-matter of challenge in the writ petition. The
jurisdiction of the Executive Council to initiate proceedings against the petitioner
was never in question; what was challenged was the authority of the vicechancellor to issue charge-sheet against the petitioner. Such error was also not
brought to the notice of the Bench by the parties.
Be that as it may, the petitioner’s response to the inquiry report was duly
placed for consideration of the Executive Council in its meeting held on 18th
June, 2016. Having considered the entire matter threadbare, the Executive
Council concurred with the findings returned by Justice Sinha and decided that
the petitioner, by reason of his conduct, deserves to be dismissed from service. A
resolution to that effect was adopted unanimously and in view of the order dated
19th February, 2016, it was further observed that the punishment of dismissal
shall not be given effect to without obtaining the leave of this Court. An
observation was also made that steps may be taken for obtaining necessary leave
from the Court to give effect to the order of punishment.
The decision of the Executive Council was placed before this Bench on 24th
June, 2016 by Mr. Dhar, learned senior advocate for the University. He prayed
for leave citing that having regard to efflux of time and the developments
subsequent to first consideration of the writ petition, the same had become
infructuous; further that if the petitioner felt aggrieved by the resolution of the
Executive Council to impose the punishment of dismissal upon him, he ought to
lay a challenge to it by way of an independent proceeding.
While considering Mr. Dhar’s prayer for grant of leave, this Bench once
again had observed that the point of jurisdiction of the Executive Council to
proceed against the petitioner by drawing up disciplinary proceedings is the
primary point arising for decision on this writ petition and that such point had
been kept open by the order dated 22nd September, 2014, necessitating hearing
of the writ petition on such point first before the prayer for lifting of the

 restraining order is considered. The writ petition was, accordingly, made
returnable on 1st July, 2016 for hearing. Such erroneous observation was again
made upon reading of the order dated 19th February, 2016, by which interim
protection was granted to the petitioner.
Mr. Datta, learned senior advocate for the petitioner commenced his
argument on the merits of the writ petition on 1st July, 2016. After hearing
progressed to some length, Mr. Dhar pointed out that in view of the order dated
22nd September, 2014, such course of action was not open to Mr. Datta. The
Bench having kept the writ petition alive for certain purposes which do not call
for any order now, the writ petition has been rendered infructuous and may be
disposed of accordingly with liberty to the petitioner to work out his remedy in
accordance with law. Mr. Datta had prayed for a short adjournment to respond.
Mr. Datta and Mr. Dhar have been heard today in extenso. For the
discussion that follows hereafter, the writ petition is proposed to be disposed of
with appropriate direction/observation.
The order dated 22nd September, 2014 makes it abundantly clear that the
Bench was not inclined to examine the point of jurisdiction, for, it intended a
free, fair, proper and meaningful inquiry into the petitioner’s conduct by
appointing a retired judge as the inquiry officer. The dual purposes for which the
writ petition was kept alive admits of no doubt, i.e. :
i)

to allow unhindered inquiry;

ii)

to consider revocation of the order of suspension passed against the
petitioner, if satisfactory progress of the inquiry is not achieved.

The order dated 22nd September, 2014 at the interlocutory stage finally
decided that the petitioner’s grievance qua the jurisdiction of the vice-chancellor
to draw up the disciplinary proceedings against him by issuing charge-sheet and
the other two points would not be considered in this proceeding. No appeal
having been carried against such order by the petitioner, the effort of Mr. Datta
to have such point re-examined by this Bench at this stage lacks merit. It is
settled law that res judicata applies at subsequent stages of the same proceeding
and in view of the law laid down by the Supreme Court in a catena of decisions,

 to which reference is considered unnecessary, this Bench declines to re-examine
the points that are sought to be raised touching the legality, validity and/or
propriety of the disciplinary proceedings. It would be open to the petitioner to
raise the point of jurisdiction and other points, if at all he assails the entire
disciplinary proceedings by instituting an appropriate legal proceeding before the
appropriate forum in accordance with law at a future date and this Bench
proposes to reserve the petitioner’s liberty in this regard.
Mr. Datta has, however, prayed for extension of the interim order passed
on 19th February, 2016 for four weeks so as to enable the petitioner seek relief
before the appropriate forum. Such prayer has been vehemently opposed by Mr.
Dhar.
It is this point that would require meticulous consideration.
Mr. Dhar reiterated that the writ petition has been rendered infructuous by
reason of the report of inquiry prepared by Justice Sinha as well as the decision
of the Executive Council adopted in its meeting dated 18th June, 2016 having
surfaced and hence, the petitioner is not entitled to any relief on this writ
petition. It has been the further contention of Mr. Dhar that the position of the
petitioner when he presented the writ petition and his present position are
remarkably different, especially after the resolution of the Executive Council
dated 18th June, 2016. While he was the charged officer at the inception of this
proceeding, he has been indicted by none other than a retired judge of this Court
upon being duly entrusted by this Bench to unearth facts, and his conclusions
have also found acceptance by the Executive Council. Referring to the
composition of the Executive Council, he submitted that the Executive Council of
the university comprises of members who have held and/or are holding high
Constitutional offices as well as other distinguished members from different
walks of life; once they have collectively and unanimously resolved to impose the
punishment of dismissal on the petitioner, there is no valid reason to extend
protection to him. Next, it was submitted that the vice-chancellor recused himself
from being part of the decision making process and, therefore, the petitioner has
no legitimate cause to feel aggrieved. Finally, he concluded by submitting that a

 distinction has to be made between an order that stays disciplinary proceedings
and the one that permits the disciplinary authority to proceed so much so that
even the final order terminating such proceedings may be passed but for giving
effect thereto, the leave of the Court is to be obtained. According to him, it was
the desire of the Bench that the petitioner may face the inquiry without any
likelihood of bias creeping in or he being denied reasonable and adequate
opportunity to defend himself resulting in appointment of a retired judge of this
Court to conduct inquiry. That the petitioner cannot and has not complained of
violation of natural justice or non-adherence to the procedure for holding a
departmental inquiry is a pointer to the fact that he has been meted justice and
the final order of punishment ought to be allowed to be enforced by granting
leave.
The contention of Mr. Datta, in response to the aforesaid argument of Mr.
Dhar, is that the entire disciplinary proceedings stand vitiated by reason of
usurpation of jurisdiction by the vice-chancellor. Reference was made by him to
the minutes of the extra-ordinary meeting of the Executive Council dated 5th
July, 2014, whereby it was resolved that :“(1)
The Vice Chancellor shall be delegated with the power of taking
appropriate action against the erring officers and employees
(2)
The Vice Chancellor shall take appropriate steps for continuing the
unfinished construction works.”

According to Mr. Datta, the vice-chancellor constituted a multi-member
committee [chaired by Hon’ble Justice N.N. Mathur (Retd.), a retired judge of the
Rajasthan High Court and 2 (two) other members] to inquire into alleged
mismanagement and the terms of reference were :
“Terms of reference:a)
To investigate into the complaints and concerns relating to financial
mismanagement or misutilization of the UGC Funds from 2011 to 2014.
b)
To find out violation of norms and requirements of financial integrity and
transparency applicable in the public institutions, if any.
c)
To identify the persons responsible for such act.
d)
To recommend the appropriate action against those who are responsible and
e)
To suggest steps to be taken for avoiding such problems in future and ensure
transparency and integrity in financial matters
f)
To consider any other matter the committee deems fit.”

 Such committee submitted a report to the vice-chancellor on 3rd April, 2014 and
the conclusions recorded by it read as under :
“Conclusion
While the committee, in course of inquiry, commented upon major expenditures
and the manner in which the same was incurred, as such we have responded to each
terms of reference. The comments made and the findings recorded are based on records
maintained by the University, as such we have tried to throw light on the irregularities
committed at different stages, keeping in view the established audit practice, we refrain
from identification of person/persons which legitimately belongs to University
administration.”

The report of the said committee was referred by the Executive Council to
the Finance Committee for deliberation and suggestion by its resolution adopted
in a meeting held on 5th April, 2014. The minutes of the 70th extended Finance
Committee meeting held on 21st June, 2014, inter alia, reveals that :
“The Finance Committee deliberated upon all aspects of the matter and agreed
that two clear issues are emerging:
1.
Fixation of responsibility for the financial mismanagement brought out in the
enquiry committee report on the officials/staff concerned;
2.
Finding ways & means of getting the stalled works re-started or completed at the
earliest so that the infrastructure could be put to its intended use.
As regards the first issue, it was felt that there were several procedural steps
required to be taken by the University authority to the officials concerned for explaining
the lapses & thereafter proceed in the matter in terms of the University rules &
regulations.”

Inviting the attention of the Bench to the above, Mr. Datta contended that
none

had

identified

the

petitioner

as

the

only

officer

responsible

for

mismanagement of funds. That apart, the vice-chancellor being actively involved
in all the transactions under inquiry and himself having signed the bills which
were cleared for payment, he could not have escaped liability by acting as a judge
in his own cause by projecting the petitioner as responsible and by excluding
himself from an inquiry being conducted to find out the real culprit. Neither the
Executive Council nor the Finance Committee had identified the petitioner as
responsible. This basic point, Mr. Datta contended, had escaped the notice of the
Executive Council while deliberating on the desirability of accepting the report of
Justice Sinha and it proceeded to rule on its own jurisdiction to take disciplinary
action against the petitioner. According to him, even if Justice Sinha has
conducted the inquiry fairly and there is no apparent reason to disbelieve his

 report, all further proceedings in pursuance of the charge-sheet would fall
through should the Court arrive at a conclusion that the vice-chancellor
conveniently found in the petitioner a scape goat and the very action of the vicechancellor in drawing up the impugned charge-sheet was beyond his authority.
It was finally submitted that although the Bench in its order dated 22nd
September, 2015 has expressed that the writ petition is kept pending for the dual
purposes appearing therein, there has been no decision on the merits of the
petitioner’s claim that the vice-chancellor lacked the jurisdiction to draw up
proceedings against the petitioner and that if leave, as prayed, were granted
without suitably extending the interim order dated 19th February, 2016 for 4
(four) weeks, the petitioner would suffer irreparable loss, injury and prejudice.
Rendering a reasoned decision on this writ petition considering the rival
claims noticed above may make it vulnerable on the ground that the Bench has
treaded a path which it had foreclosed by its order dated 22nd September, 2016.
However, the contention raised on behalf of the petitioner regarding the authority
of the vice-chancellor or the lack of it to draw up disciplinary proceedings against
the petitioner is worthy enough to merit a serious consideration. The Bench
cannot brush aside the stigma that is likely to embrace an individual once he is
dismissed from service. At times, an order of court setting aside such order fails
to act as a balm to heal the wound. The factors on consideration whereof a court
grants interim protection to preserve the rights of the parties till final disposal of
the lis are applicable in equal measure in a case of like nature, notwithstanding
that the instant proceeding would terminate by this order. Since the petitioner
has enjoyed interim protection since 19th February, 2016, continuance of such
protective order for a week more would sufficiently serve the ends of justice.
Having regard to the above, this writ petition stands disposed of granting
liberty to the petitioner to approach the appropriate forum in accordance with
law to challenge the disciplinary proceedings initiated against him culminating in
the resolution of the Executive Council dated 18th June, 2016 to impose the
punishment of dismissal on him.

 Needless to observe, all points including the point of jurisdiction of the
vice-chancellor to draw up disciplinary proceedings against the petitioner by
issuing the charge-sheet dated 27th August, 2014 are kept open.
The university is granted leave to give effect to the order of dismissal not
before expiry of Monday next (18th July, 2016) subject to further order, if any,
that is passed by the appropriate forum on an approach being made by the
petitioner in the meanwhile.
Since the respondents have not been invited to place their version on
affidavit, the allegations levelled in the writ petition shall not be deemed to have
been admitted by them.
There shall be no order for costs.
Photostat certified copy of this order, if applied for, be furnished
expeditiously.
(Dipankar Datta, J.)