TaxTMI 
TaxTMI 
1977 (2) TMI 131
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntral Council was the executive body of the University and it had the power inter alia to appoint teachers and to define their duties. The respondent was appointed as a lecturer in English by the Central Council on 25th April, 1966 and after his period of probation was over he was confirmed as lecturer with effect from 29th April, 1967. The conditions of service of the respondent, like those of other confirmed teachers, were regulated by the Statutes made by the Senate from time to time under the provisions of Act of 196.5. Statute 2 provided that every salaried teacher of the University shall have to execute a written contract with the University and the conditions of service of teachers appointed by the University shall be those embodied in the agreement of service annexed to the Statutes and every teacher shall execute such agreement before he enters upon his duties or as soon as possible thereafter. It appears that though Statute 2 required an agreement of service to be executed by a teacher, no such agreement of service was executed by the respondent on his appointment as lecturer. But it was common ground between the parties that the conditions of service of the respondent we....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the power to dismiss teachers below the status of a reader. Since the University of Jammu & Kashmir came to an end on the repeal of the Act of 1965 and two new universities, one of Kashmir and the other of Jammu, were established, some provision had to be made in the Act of 1969 for continuance of the Statutes and Regulations so that there might be no hiatus or break causing dislocation in the functioning of the two new universities. Section 51 of the Act of 1969. therefore. provided that all Statutes and Regulations made under the Act of 1965 and in force immediately before the commencement of the Act of 1969 shall so far as may be consistent with the provisions of the latter Act, continue to be in force in each University and section 48. sub-sec. (2) gave power to the special officer to "examine the Statutes and Regulations continued under section 51 of this Act and propose such modifications, alterations and additions therein as may be necessary to bring such Statutes and Regulations in conformity with the provisions of this Act" and provided that the modifications, alterations and additions proposed by the Special officer shall, if approved by the Vice Chancellor, be ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... after consulting the Pro-Chancellor, shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Act and all such contracts with or deputations to he University of Jammu & Kashmir shall stand terminated with effect from the expiry of the said period of 60 days." Since most of the teachers had entered into an agreement of service with the University of Jammu & Kashmir as provided in Statute 2 and the rest were also treated as having entered into such agreement of service by reason of the compulsive force of Statute 2 though in fact such agreement of service had not been executed by them, perhaps due to inadvertence, the Chancellor took the view that all of them held their posts on contract basis and hence, proceeding on the assumption that sub-sec. (4) of section 52 was attracted in their case, he made an order dated 24th December, 1969' directing that the appointments of the teachers set out in Schedule (1 ), which also included the respondent, shall continue on the respective posts mentioned In that schedule on the terms and conditions embodied in Schedule II with effect from 9th January, 1970. Schedule II contained the terms a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rders of the University Council and the Syndicate of the University concerned regarding the appointment, dismissal and suspension of persons in the employment of the University and shall exercise general control over the affairs of the University. He shall be responsible for the discipline of the University in accordance with this Act, Statutes and Regulations." The Vice-Chancellor, immediately after passing the Order of suspension, placed it before the Syndicate at its next meeting held on 24th June, 1970. The respondent had also in the meantime submitted his representation against the Order of suspension and this representation also came up before this meeting of the Syndicate. The Syndicate considered the Order of suspension made by the Vice Chancellor as also the representation submitted by the respondent and passed a resolution rejecting the representation of the respondent recording the action taken by the Vice-Chancellor and directing that articles of charge be framed and communicated to the respondent and he may be required to submit his explanation in writing and a committee consisting of the Vice-Chancellor and three other persons be appointed to investigate the mat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on the ground of charges Nos. 1 and 12. Pursuant to this resolution, a show cause notice was issued to the respondent which led to the filing of a petition by the respondent in the Letters Patent appeal for taking notice of these subsequent events. The respondent in this petition challenged the report of the committee as also the resolution of the Syndicate on various grounds which are no longer material. The University filed its reply to the petition denying the allegations made against the committee and disputing the grounds on which the validity of the enquiry was challenged on behalf of the respondent. The Letters Patent appeal thereafter came to be heard by a Division Bench of the High Court and the Division Bench, by a judgment dated 22nd October, 1973, took the view that the Order dated 24th December, 1969 was violative of section 52, sub-section (1) of the Act of 1969 and the Order of suspension dated 21st May, 1970 was "defective for want of jurisdiction and other legal infirmities" and these two orders were accordingly quashed and set aside by the Division Bench. The Division Bench also held that "as a necessary corollary to our findings on the two impugned....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... suspension exgratia without any liability on the part of the University. The Chancellor was authorised to determine this matter in consultation with the Pro-Chancellor or in such other manner as he thought proper and he could do so, even without giving any opportunity to either party to make his or their submissions in the matter. Having regard to this settlement, the only two questions which remained to be resolved by this Court were, first, whether the Order of suspension was valid, and secondly, if the Order of suspension was valid, whether the respondent was entitled to anything more than the subsistence allowance actually paid to him. These two questions we shall now proceed to decide. The first question is whether the Order of suspension made by the Vice-Chancellor was a valid Order or it suffered from any legal infirmities. The respondent assailed the validity of the order of suspension on the ground that it was made in purported exercise of the power conferred under clause (9) (ii) of Schedule II to the Order dated 24th December, 1969, but this Order w. as itself void and inoperative as it was in conflict with the provisions of section 52, subsection (1) of the Act of 196....
X X X X Extracts X X X X
X X X X Extracts X X X X
....niversity by reason of section 51, but section 48, sub-section (2) provided for making of modifications, alterations and additions in the Statutes with a view to bringing them in conformity with the provisions of the Act of 1969. The Special Officer accordingly proposed certain modifications in the Statutes which were found necessary to bring the Statutes in conformity with the provisions of the Act of 1969 and. these modifications were approved by the Chancellor by an Order dated 24th December, 1969 and by reason of section 48, sub-section (2) they were deemed to have been made by the competent authority under the Act of 1969. This Order dated 24th December, 1969 substituted Chapter iV in the Statutes by a new Chapter and Statute 24(ii) in the newly substituted Chapter made the same provision as clause (9)(ii) of .Schedule II to the Order made under sub-section (4) of section 52. Now, obviously, if Statute 24(ii) were a valid provision, the Vice Chancellor would have power to suspend a teacher "on the ground of misconduct, insubordination, inefficiency or unsatisfactory performance of duty" and the Order of suspension made against the respondent would be within the autho....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3 with the task of maintaining discipline in the University and the entrustment of this task carried with it by necessary implication power to. take whatever action was necessary for the purpose of maintaining discipline, provided of course such action was in accordance with the Act of 1969' and the Statutes and Regulations. Since sub-section (6) of section 13 was a new provision enacted in the Act of 1969, it was necessary to make Statutes for the purpose of enabling the Vice-Chancellor to effectively discharge the responsibility of maintaining the discipline of the University and for that purpose, vesting power in the Vice-Chancellor to suspend a teacher pending departmental enquiry against him. It was with this object of bringing the Statutes in confirmity with subsection (6) of section 13 that Statute 24(ii) was added by way of modification in the Statutes by the Order dated 24th December, 1969. We may concede straight away .that if there was anything in the Act of 1969 which was inconsistent with the conferment of power of interim suspension on the Vice Chancellor, Statute 24(ii) could not be approved by the Chancellor, because no Statute can be made is in conflict with an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the language of sub-section (4) of section 13. But this contention is clearly fallacious and the premise on which it is based is unsound. It is not correct to say that an order of interim suspension is a quasi judicial order and in any event, the language of sub-section (4-) of section 13 is sufficiently wide and comprehensive to take within its scope and ambit every kind of action which may be considered necessary by the Vice Chancellor in an emergency and there is no reason why such action should not include making of an order of interim suspension. The Vice-Chancellor, therefore, clearly had power under section 13, sub-section (4) to make an order of interim suspension if he thought it necessary to make such an order in an emergent situation which in his opinion called for immediate action. The respondent sought to contend that at the date when the order of suspension was passed, there was no emergency which called for immediate action on the part of the Vice Chancellor and, therefore, the foundation for taking action under section 13, subsection (4) was wanting and the order of suspension could not be justified under that provision. But this contention cannot be entertained by....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... service of the respondent could not be varied to his disadvantage and, therefore, neither Statute 24(ii) nor section 13, sub-section (4) could operate to confer on the Vice-Chancellor power to make the order of suspension which he did not possess under the old terms and conditions. This contention, plausible though it may seem, is, in our opinion, not well founded. Section 52, subsection (1) undoubtedly continued the service of a teacher on the same terms and conditions as regulated his service before the commencement of the Act of 1969 and that was subject to the provisions of sub-section (2) of section ,52, but this subjection to the provisions of sub-section (2) did not import the requirement set out in the second proviso that the conditions of service of a teacher shall not be varied to his disadvantage. The words "subject to the provisions of sub-section (2)" employed in subsection (1) of section 52 were intended merely' to clarify that a teacher shall continue in service on the same terms and conditions but subject to any allocation which may be made by the Vice-Chancellor under sub-section (2) of section 52. Nothing in sub-section (1) should be construed as in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as bound to perform his duties under the contract nor was the University bound to pay any salary to him. The respondent was entitled to receive from the University only such subsistence allowance as might be payables under the rules and regulations governing his terms and conditions of service. The legal position in regard to the right of a master to suspend his servant is now well settled as a result of several decisions of this Court. The law on the subject was succinctly stated the following words by Hegde,J. in V P Gindroniya v. State Madhya Pradesh ([1970] 3 S.C.R. 448): "The general principle is that an employer can suspend an employee of his pending an enquiry into his misconduct and the only question that can arise in such a suspension will relate to the payment of his wages during the period of such suspension. It is now well settled that the power to suspend, in the sense of a right to forbid a employee to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such a ....