- (1.) BY means of this writ petition the petitioner has challenged the order/decision of the Executive Council dated 10.10.2013 in so far as it authorises the Vice Chancellor to take a final decision in relation to the disciplinary proceedings/inquiry against the petitioner. She has also challenged the subsequent decision taken by the Vice Chancellor on 15.3.2014 based on such authorisation by which the petitioner has been removed from the services of the University. The impugned orders have been challenged on various grounds. One of the contentions raised by the learned counsel for the petitioner was that the very authorisation by the Executive Council on 10.10.2002 in favour of the Vice Chancellor was patently illegal being against the letter and spirit of Statute 40 (3)(a) and (b) of the University, which are being quoted hereinunder : - 40 (3) (a) Notwithstanding anything contained in the terms of the contract of service of a teacher, the Executive Council shall be entitled to dismiss a teacher on grounds of misconduct after following the procedure specified in clause (C), but save as aforesaid, the Executive Council shall not be entitled to determine the employment of a teacher save for good cause and after giving three months notice in writing or payment of three months' salary in lieu of such notice. (b) The determination of a teacher's employment shall require a two -third majority of the members of the Executive Council present and voting. Based on the aforesaid the contention of the learned counsel for the petitioner is that under statute 40(3) (a) the determination of teacher's employment is to be done by the Executive Council and by virtue of clause (b) such determination of teacher's employment shall require a two -third majority of the members of the Executive Council present and voting and such a power cannot be delegated to the Vice Chancellor. The responsibility to take collective decision as envisaged in statute 40(3)(b) could not be delegated to an individual, i.e. the Vice Chancellor. The learned counsel for the University, on the other hand, has invited the attention of the Court to Statute 44 which reads as under : - 44. Delegation of powers - Subject to the provisions of the Act and these Statutes, any officer or authority of the University may delegate his or its power to any other officer or authority or person under their respective control and subject to the condition that overall responsibility for the exercise of the powers so delegated shall continue to vest in the officer or authority delegating such powers.
(2.) SRI Shashank Shekhar Singh, learned counsel for the University, has stated that as per his instructions, no counter affidavit is required to be filed in the case at this stage and the matter can be disposed of on the legal issue involved with a direction to take a fresh decision in accordance with law. On a careful reading of the provisions as aforesaid we find that though statute 44 empowers any officer or authority of the University to delegate his or its power to any other officer or authority or person under their respective control and subject to the condition that overall responsibility for the exercise of the powers so delegated shall continue to vest in the officer or authority delegating such powers but, we find that the power vested under Statute 40(3)(a) and (b) is of such a nature as could not be delegated under statute 44, therefore, the latter statute has to be read and understood in a manner so as to carve out an exception for the exercise of power under statute 44. The responsibility to take a collective decision by a two -third majority of the members of the Executive Council present and voting requires actual voting and we have no doubt that such powers cannot be delegated under statute 44. Statute 44 open with the words "subject to the provisions of the Act and these Statutes", therefore, the provisions of statute 43 (a) and (b) will prevail and they do not lend themselves for delegation under statute 44. It is not disputed and as is also evident from the records it is the Vice Chancellor who has taken the decision as was required to be taken by a two -third majority of the members of the Executive Council present and voting, therefore, the decision of the Vice Chancellor dated 15.3.2014 is patently unsustainable in law. Moreover, for the reasons already mentioned the very authorisation by the Executive Council in favour of the Vice Chancellor is also not sustainable. In view of the above discussion and the statements of the learned counsel for the parties, the impugned orders/decision do not survive and the same are accordingly quashed. The writ petition is allowed. The respondent -University is granted liberty to proceed and take a fresh decision strictly in accordance with law as observed hereinabove.
(3.) IT is expected that while taking a fresh decision the Executive Council shall take a decision with due and proper application of mind and in an objective manner. We also make it clear that we have not considered the merits of the charges levelled against the petitioner.;