KANTI BHUSAN BHOWMICK Vs. KALYANI UNIVERSITY

JUDGEMENT

(1.) In the instant writ application, an order dated 31.5.90 passed by the Vice Chancellor of Kalyani University discharging the writ petitioner from service is under challenge, which was passed by the Vice Chancellor in exercise of power under section 10(6) of the Kalyani University Act, 1981 read with section 29(3) of the said Act.

(2.) The facts of the case, bereft of unnecessary details as it appears from the writ petition, are the writ petitioner was appointed as University Engineer in the University of Kalyani on 14th July, 1988 on probation for one year. The University Engineer is in charge of the Works Department of the University and is whole time officer of the University. After joining the University the writ petitioner allegedly noticed various irregularities in the Works Department and received complaint of serious nature from different corners regarding conduct of the respondent no. 4 i.e., Shri D. N. Bhar, Assistant Engineer of the Works Department, the writ petitioner proceeded with the said complain and took various steps to improve the function of the Works Department. The writ petitioner who completed one year service on 13th July, 1989 was never reformed during the aforesaid period of probation any lapses and/or deficiency and otter one year of service the writ petitioner was granted usual increment in the time scale of pay enjoyed by the petitioner. In July, 1989 his pay was fixed at Rs. 1660/- per month. In August, 1989 the election of a member to the Executive Council of Kalyani University was held ; in the said election, the writ petitioner actively supported the candidature of a candidate from Officers' constituency, Dr. Arun Kumar Ghosh who was a rival candidate of the respondent no. 4 in the said election who was supported by the members of the Kalyani University Employees Association. On 11.8.89, a meeting of the outgoing Executive Council was held which adopted a resolution extending the period of probation of the writ petitioner for one year with effect from 14.7.89 without giving any reason. A representation was made by the writ petitioner to the Executive Council through the Vice Chancellor to reconsider the said decision which was of no avail. On the contrary, the Vice Chancellor of the said University openly demanded a suitable action to be taken against the writ petitioner and tire same would be evident from the leaflet issued by the Kalyani University Employees' Association. On April 18, 1990 a purported charge-sheet was issued against tire writ petitioner who was placed under suspension. In a letter dated 30th May, 1990 the Registrar of the said University wrote to the petitioner requesting him to meet Shri R. M. Nath, D.S.P. CID at Bhawani Bhawan, Alipore Calcutta-27 on 1st June, 1990. In exercise of power under section 10(6) of the Kalyani University the Vice Chancellor of the said University terminated the service of the petitioner which was given effect from 1st June, 1990. It is the further case of the writ petitioner that under the facts and circumstances of the case exercise of an emergency power under section 10(6) of the Kalyani University Act was not called for and was unwarranted as there was neither an emergency nor any urgency warranting exercise of such power. It is the further contention of the writ petitioner that it is the Executive Council of the University which is the appointing authority of the petitioner and the said Executive Council is also the disciplinary authority and the Vice Chancellor had no jurisdiction to terminate the service of the writ petitioner in exercise of such emergency power. It is the further case of the writ petitioner that the impugned order was passed by the Vice Chancellor not at all in bona fide exercise of power, but for extraneous reason at the instance of the Employees' Association. The aforesaid order of termination has also been challenged by the writ petitioner on the ground that since the impugned order of termination attaches stigma to the writ petitioner, the respondents were bound to give a reasonable opportunity of hearing to the writ petitioner, but the same not having been done, principle of natural justice and the right of life of the petitioner under. Article 21 of the Constitution have been violated. Such order of termination has also been challenged by the petitioner on the ground that he having completed one year probationary period and he not having been communicated with any order that his service has not been found satisfactory, after completion of one year he will be deemed to be confirmed in service and therefore, his service cannot be terminated in the manner as aforesaid without taking recourse to a regular disciplinary proceeding.

(3.) Mr. Lahiri appearing for the writ petitioner in support of the writ application has raised mainly three fold contentions. Firstly, it has been contended that the impugned order of termination on the face of it will indicate that the same is not at all a simple order of termination or discharge of a probationer but really an order of dismissal on the ground of misconduct and therefore such order could not have been passed without giving a reasonable opportunity of hearing to the writ petitioner and without taking recourse to a regular disciplinary proceeding. Mr. Lahiri has referred to a number of decisions of the Supreme Court and of different High Courts in support of his contention that if an order of termination attaches stigma, the same cannot be passed without giving a hearing. It has also been contended by Mr. Lahiri that the impugned order which was passed ostensibly in exercise of emergency power under section 10(6) of the Kalyani University Act, 1981 is wholly without jurisdiction inasmuch as it will appear from the facts and circumstances of the case that the condition precedent to exercise of such power, namely existence of an urgency or emergency was absent. It was contended by Mr. Lahiri that it will appear from the said section 10(6) of the said Act that such emergency power can be exercised only when the Vice Chancellor is of the opinion that there is an urgent and emergency situation warranting exercise of such power. But is the instant case, there being neither any such emergency nor any urgency, the opinion if any of Vice Chancellor that there is emergency or urgency is wholly unwarranted and not bona fide. A number of decisions of the Supreme Court were also relied upon by Mr. Lahiri in support of his aforesaid contention. It has also been submitted by Mr. Lahiri that the writ petitioner having completed one year service satisfactorily and not having been communicated with any order before completion of such one year, that his service was not satisfactory and also having been granted an increment, will be deemed to be confirmed and therefore the respondent cannot terminate his service in the manner as aforesaid without giving any hearing.