- (1.) The petition is at the instance of an Associate Professor in the Department of Biotechnology with the National Institute of Pharmaceuticals Education and Research (NIPER) against the said Institute, the Union and the Chief Officials of NIPER namely the Officiating Director, the Dean and the Acting Registrar seeking to quash the order passed constituting an enquiry and removing the petitioner from several institutional Committees and constituting an enquiry for some alleged misconduct. The petitioner has alleged mala fides against the respondents for constituting the enquiry. Before the arguments got under-way, learned counsel appearing for the respondents stated that the enquiry has been completed and it only awaited the final stage of submission of report. Having regard to the subsequent event after the institution of the writ petition, when the enquiry constituted against the petitioner has passed through several stages, I had asked the counsel for the petitioner to only argue on the preliminary point of whether the constitution of the enquiry itself was vitiated. The argument has, therefore, proceeded against the competency of the Officiating Director to institute the enquiry.
(2.) Learned counsel for the petitioner would contend that he was only Officiating Director and at the time when the enquiry was constituted on 24.03.2011, his tenure of office as Officiating Director had already expired and therefore, he was not competent to initiate the enquiry. Through the impugned order dated 24.03.2011, he had also been suspended and such power of suspension also did not reside with the Officiating Director. The office of the Director is a creature of statute and therefore, it would become necessary to examine the power of the Director as delineated under the Act. The NIPER has been established under the National Institute of Pharmaceutical Education and Research Act of 1988. It has been enacted to declare the institution of NIPER to be an institution of national importance and to provide for its incorporation and matters connected therewith. Director as defined under Section 3 (e) is the Director of the Institute appointed under Section 16 of the Act. Section 16 (1) allows for the appointment of the Director with the prior approval of the Visitor. The relevant portion of Section 16 is reproduced to examine his powers:- "16(2) The Director shall be the principal academic and executive officer of the Institute and shall be responsible for the proper administration and academic performance of the Institute and for imparting the instruction and maintenance of discipline therein. (3) xxx xxx xxx (4) The Director shall exercise such other powers and perform such other duties as may be assigned to him by this Act or the Statutes or the Ordinances.
(3.) The Statutes and Ordinances are defined under Section 3 (j) as referring to the Statutes and Ordinances made under the Act. The Statute is made under Section 27 by the Board with the previous approval of the visitor and a copy of the same is laid before the House of the Parliament. All the appointments of the staff of Institute except that of the Director is required to be made in accordance with the procedure laid down by the Statutes. All the appointments of the academic staff in the post of Assistant Professor and above is made by the Board in terms of Section 25 of the Act. The petitioner is appointed, therefore, by the Board is not in dispute. This becomes essential to consider whether a person, who is lower than the Appointing Authority is entitled to constitute an enquiry and issue the charge-sheet. The Central Government has published the first Statutes under Section 36(1) of the 1998 Act on 30.10.2003. Rule 14 of the Statutes provides for powers, duties and functions of the Director, Dean, Head of Department and Registrar of the Institute respectively. Table II of Rule 14 (r) is relevant for our purposes relating to examining the tenure of the post of the Director. It reads as follows:- "(r) shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for reappointment. Provided that the Visitor may direct that a Director, whose term of office has expired, shall continue in office for such period, not exceeding a total period of one year, as may be specified in the direction." Rule 14 (q) of the Statute empowers the Director to take disciplinary action on the following terms:- "(q) To take disciplinary action against the employees, and to suspend them pending inquiry to administer warnings to them or to impose any penalty in accordance with the rules. Provided that no such penalty shall be imposed unless the person concerned has been given a reasonable opportunity of being heard and showing cause against the action proposed to be taken in regard to him.";