R. M. Sahai, J. - (1.) -Principal issue that arises for consideration in this petition directed against order of removal passed by the Board of Management of Chandra Shekhar Azad University of Agriculture and Technology, Kanpur. Against petitioner an Economic Botanist (Legumes), department of Genetics and plant .Breeding, is if the order is vitiated having been passed in violation of principles of natural justice and against directions of the Chancellor in reference directed against earlier order of minor punishment.
(2.) IMPORTANT also is the issue if a delinquent challenges order of punishment and the higher authority after quashing punishment directs disciplinary authority to pass fresh order could the disciplinary authority impose harsher and severer punishment on same material than what was imposed earlier. In other words can a person be made worse than what he was if he would not have challenged the order of punishment. Ancillary to these is the issue if a person who did not possess the prescribed qualifications on the date when he made application for a post but acquired it subsequently at time of interview or appointment then does bis appointment stand vitiated. Before adverting to any of these issues which apart from being legal have to be adjudicated upon on the facts it appears necessary to lay bare the factual matrix. In August, 1973 an advertisement was issued by Public Service Commission inviting applications till 31st December, 1973 for one post of Geneticist, the essential qualification for which were (i) First or second class with at least 50% marks M. Sc. (Ag) in Agricultural Botany or Genetics and plant Breeding OR M. Sc. in Botany with a special paper in Genetics and plant Breeding or thesis in lieu thereof or have undergone training in Genetics and plant breeding after obtaining M. Sc. (Botany) degree, (ii) Ph. D in genetics and plant breeding OR exceptionally distinguished record of research in the field and (iii) five years experience of research in plant breeding Preferential, Experience of teaching and/or guiding research in Genetics and plant Breeding in Post graduate classes. In pursuance of this advertisement the petitioner applied for the post disclosing his qualifications as under :- Examination Year University Division Percentage of passed marks Ph. D. 1973 Meerut _ M. Phill. 1971 do I 74.4% M. Sc. (Ag) 1967 Agra I 62.1% B. Sc. (Ag) 1965 do I 68.8% It also contains details about research experience, teaching experience, professional recognition and honours, publications, that is, thesis and dissertation, research publications, popular articles etc. He was called for interview by a letter dated 30th August, 1974 asking him to appear on 11th September, 1974 alongwith Ph. D. degree and original application duly forwarded by Head of Department. Petitioner produced these certificates including the Ph. D. Degree awarded to him in 1974. Viva voce examination for Ph. D. was held on 1st December, 1973 as is clear from the report of viva voce examiners which reads as under : " Viva voce examination of Mr. J. S. Sindhu was conducted on his Ph. D. thesis entitled " Genetics of male sterility, fertility restoration and heerosis breeding in wheat ", jointly by us on 1-12-1973, at Cummings Laboratory, IARI, New Delhi. Performance of the candidate was satisfactory. Mr. Sindhu was able to defend his work competently. We feel, the contributions made by Mr. Sindhu are valuable both from fundamental and applied point of views. " Out of persons who appeared for interview, including one Dr. Udal Singh, who was in class II services and working on Class I on ad hoc basis in U. P. Institute of Agriculture Science, the petitioner was selected by the Commission and appointed by the State Government on 27th February, 1975 in U. P. Agricultural Service class I. Immediately after his appointment Dr. Udal Singh filed writ petition no. 6251 of 1975 challenging the appointment of petitioner in which the public service commission filed a counter-affidavit, paragraph 5 of which is extracted below : Para 5 : That the assertions contained in paragraph 18 of the writ petition, are not admitted. In reply it is stated that the respondent no. 4 Sri Jagbir Singh Sindhu had in brief claimed to possess the following qualifications and experience : Qualifications : (1) M. Sc. (Ag) in Ag. Botany, 1st Div in the year 1967. (2) M. Phill. In Agr. Botany, 1st Div. in the year 1971. (3) Ph. D. in Agr. Botany, in the year 1973-74. Experience : December 1967 to November 1968. Res. Assistant with the Rockfeller Foundation, New Delhi Worked on breeding for disease resistence in wheat. November 1968 to December 1970 : Lecturer in plant breeding at the Punjab Agr. University (Palampur Campus) worked on wheat and Soyabean breeding. 1970 to June 1973. Research fellow at the Institute of Advanced Studies of the Meerut University. June 1973 to December 31, 1973. Post Doctoral research fellow, Benaras Hindu University. A copy of the detailed Bio-data furnished by Dr. J. S. Sindhu is enclosed as Annexure I. These aforesaid qualifications satisfied the essential requirements in the advertisement and Dr. Sindhu was found most suitable for selection. The petition was dismissed as withdrawn on 18th March 1980. In the year in which petitioner was appointed that is, 1975 Chandra Shekhar Azad University of Agriculture and Technology was established at Kanpur to which assets of U. P. Institute of Agricultural Science were transferred. In respect of transfer of employee the government issued a separate order prescribing the procedure for opting the University services and for resigning from the State service. In pursuance of the procedure prescribed in the Government order petitioner resigned the government service, opted for University service, and he was appointed on the post of Economic Botanist (Legumes) on which he was confirmed by the University in January 1979. Government orders dated 14th May 1980 and 6th June, 1980 on which reliance has been placed in counter affidavit did not in any manner detract the status of petitioner as they were only issued for regularising the absorption of the employees of Agricultural Institute who had opted for the University services. In 1980 petitioner appears to have been awarded professional Development Award by the International Development Research Certificate to pursue advance research work in Canada for which the University gave him a no objection certificate. Since the petitioner was to proceed in November, 1981, it is stated that he met the Vice Chancellor who told him that since the meeting of the Board of Management could not be convened before that date the petitioner should postpone the original date of departure and fix any other date after 15th November 1981. Consequently, petitioner fixed his departure on 20th November. But the meeting of the Board of Management did not take place and it is stated that with the oral permission of the Vice Chancellor petitioner proceeded for Canada on 20th November, 1981. In counter affidavit filed by the office Superintendent of the University, the claim of petitioner of oral permission by the Vice Chancellor has been denied, on perusal of record. But no letter of the Vice Chancellor refuting the claim of petitioner has been filed. Nor it has been stated that the deponent of the counter affidavit met the Vice Chancellor who informed him that the petitioner did not have any talk in this connection. In August, 1982 a show cause notice was issued to petitioner asking him to explain as to why action may not be taken against him as he was neither Ph. D. nor had five years experience of research work but by mis-representation and misleading the Public Service Commission he secured his appointment. He was also asked to explain as to how did he leave for Canada without prior sanction of leave. Certain irregularites about handing over cash at the time of handing over charge and failure to adjust advances were also required to be explained. On 7th September 1982 the petitioner sent his reply from Canada refuting each of irregularities pointed out in the show cause notice and informing the authorities that proceedings be postponed till mid November as he was requesting the International Development Research Centre to relieve him as he was interested in joining his post at Kanpur. On August 16, 1983 the Board of Management passed a resolution which reads as under : " 47 : 2 Item No. 46 : 3 : The Board was of the view that extent of defraudation required severe punishment leading to the dismissal of Dr. J. S. Sindhu but taking into consideration his long service the Board desired that from the point of view of correcting the conduct of the officer the following punishment be awarded : (1) One increment may be withheld for a period of two years which will have effect of postponing future increments. (2) An adverse entry be recorded in the character roll of Dr. J. S. Sindhu in respect of his doubtful integrity. (3) Dr. Sindhu be transferred from his present position and the authority of Drawing and Disbursing be not allowed to Dr. Sindhu. It was challenged by way of writ petition no. 10727 of 1983 which was dismissed, persumably because the petitioner had an alternative remedy of approaching the Chancellor. Therefore, the petitioner challenged the resolution of the Board of Management before the Chancellor who by his order dated 26th April, 1984 quashed it and remanded the case to the University. The operative portion of order is extracted below : " In view of the above circumstances, I hereby quash the resolution of the Board of Management in question and remand the case to the University for fresh decision with the direction that the petitioner may be supplied with copies of all the material evidence reliance on which is placed by the University in support of the various charges framed against the petitioner and he may be given opportunity to meet the same. The University is further directed to state in the finding as to which of the charges have have not been established against the petitioner by the evidence and on which of the charges the punishment, if any, is being imp]osed. " In pursuance of this direction a charge sheet was served on 10th August, 1984 requiring petitioner to file the written statement on or before 25th August, 1984 and to inform the Vice Chancellor who had sent the charge sheet if the petitioner desired to be heard in person or he would like to examine himself or cross examine any witness. Charges 1 to 7 were reiteration verbatiem of the acts and omissions narrated in show cause notice issued on 13th August, 1982. Failure to adjust advance which was 6th irregularity pointed out in 1982 was dropped probably because the explanation of petitioner was satisfactory. One new charge was added of purchasing cotton and locks worth Rs. 257.80 p. in excess of schedule rate. On 22nd August, 1984 petitioner sent a letter and informed the Vice Chancellor, " In his above quoted order the Chancellor had directed the University to supply the petitioner with copies of all the material/evidence reliance on which is placed by the University in support of various charges framed against the petitioner. You are, therefore, requested to kindly supply me copies of all such documents on which you relied while framing these charges against me. An early action will help me in replying the charges. " Having received no reply the petitioner submitted the written statement on 25th August, 1984 giving reply to each of the charges in detail. On 18th December, 1985 the Board of Management passed a resolution removing petitioner from service of the University as the charges in nut shell were found established against petitioner-one that he secured his appointment by misrepresenting the Commission that he was Ph.D. when in fact he did not possess Ph.D. degree, second that he left for Canada without sanction of leave which was contrary to rules.
(3.) HAVING narrated the factual background the first and the main issue may be taken up. From the extract of the order of Chancellor it is clear that the University was directed to supply copies of material evidence on which reliance was placed by University and to give opportunity to petitioner to meet it. Copy of the letter sent by petitioner on 22nd August, 1984 requesting to supply material after service of charge sheet has been extracted above. But the letter was neither replied nor any copy was supplied to petitioner. In paragraph 43 and 44 of the petition it is asserted that petitioner demanded personal hearing and wanted to produce witnesses but neither any material was supplied nor petitioner was heard nor he was permitted to examine witnesses. In paragraph 21, 22, 24, 25 and 26 of the Supplementary affidavit it is alleged that no inquiry proceedings was held in presence of petitioner nor any evidence was recorded nor was he informed that any inquiry officer had been appointed by any communication nor he was informed of any date by inquiry officer and everything was done behind back of petitioner and the inquiry officer never informed about any proceeding. Its reply has been given in paragraphs 27, 28, 65, 72 and 73 of the counter affidavit. Relevant portion of the averments reads as under : Para 27 ; That on 10-8-1984, a charge sheet was issued by the Vice Chancellor to Dr. Sindhu, which has already been attached to the writ petition as Annexure 13. The petitioner had submitted his reply to the charge sheet dated 25-10-1984 and the University had shown him all the relevant papers and evidence. The petitioner has inspected himself personally several times in the office of the Vice Chancellor the relevant file and the papers relating to the charges contained in the charge sheet dated 10-8-84 and the petitioner was afforded all the opportunities to rebut the charges levelled against him. Para 29 : That the petitioner has given all his evidence before the Enquiry Officer and the Enquiry Officer has submitted a report dated 24-1-1985. Thereafter the Board of Management in its meeting dated 18-12-1985, considered the enquiry report......... Para 65 : The Vice Chancellor has appointed the Enquiry Officer (Director Administration and Monitoring of the University) on 22-11-1984 for enquiring into the allegations against the petitioner and a detailed enquiry has been held by the aforesaid enquiry officer. The petitioner has participated in the enquiry fully and he has given all the evidence etc. before the enquiry officer, who has submitted his report on 24-1-1985. Para 72 : Before the aforesaid Enquiry Officer, the petitioner appeared and participated in the enquiry and each and every paper, which is relevant and which was relied upon by the University, was made available to the petitioner. The petitioner was extended full cooperation and he inspected the same and even made copies of various papers before the enquiry officer. Para 73 : There is no violation of principle of Natural justice. The enquiry officer, of the rank of senior PCS Officer, was appointed and the charge sheet was submitted to the petitioner and all the documents and papers connected with the matter were made available to the petitioner. He was also afforded opportunity of inspection of papers and copying down the same. During the course of enquiry right from the beginning to end, the petitioner did not specify as to which particular paper or set of papers, were required by him so that University may supply. The allegations of supplementary affidavit have not been specifically replied in the supplementary counter affidavit as reply in this regard is stated to have been given in the counter affidavit. Since averments in counter affidavit were emphatic the extracts of which have been quoted above the record of the University were sent for. And it was distressing to find that an Office Superintendent of an University has sworn the affidavit without realising the gravity of it. From the record it transpired that after submission of petitioners reply the Vice Chancellor on 22nd November, 1984 appointed Director of Administration and Monitoring of University, a PCS Officer, as an Enquiry Officer but the Enquiry Officer did not fix any date nor did he take any proceeding except that he submitted his report on 24th January, 1985. The averments that petitioner gave, all his evidence before the Enquiry Officer, is incorrect not supported by the record. When the inquiry officer did not fix any date there was no occasion for petitioner to lead any evidence or, holding of a detailed inquiry by the Enquiry Officer or that petitioner, participated in the inquiry fully or that every paper which was relied by the petitioner was made available to petitioner. The averment that, during course of inquiry right from the beginning to end, the petitioner did not specify as to which particular paper or set of papers was required by him so that the University may supply it, to say the least, has been made to mislead this court. When the inquiry officer did not take any proceeding nor fixed any date where was the question of beginning of inquiry and its end. In absence of any material on the record of the University to establish that petitioner even came to know that an inquiry officer had been appointed there could neither be participation nor hearing. All these averments have been sworn partly on personal knowledge and partly on record without specifying which part was on personal knowledge of the deponent. In fact whether petitioner was afforded opportunity or he was heard or he inspected the records or he participated or he knew about inquiry could be matter of record only. But it could not be substantiated from the record produced on behalf of University. There is thus no doubt that the officer who filed the affidavit and is expected to know the heavy responsibility that lies on shoulder of officers of public bodies to be precise and authentic as petitions are decided on affidavit filed in his duty.;