Ziyad Rahman A.A, J
1. The petitioner, who is the Vice Chancellor of Kerala Veterinary Animal Sciences University (KVASU), has approached this Court with this Writ Petition challenging Exhibit P1 order passed by the 3rd respondent, the Chancellor, by which the petitioner was suspended from service, pending inquiry.
2. The facts which led to the filing of Writ Petition are as follows:
On 18.02.2024, an incident was reported with respect to the suicide of a student of 2022 Batch of B.VSc. and A.H. Programme of the College of Veterinary and Animal Sciences, Pookode, Wayanad, in the Men's hostel of the college. In connection with the said incident, the Police registered a crime and later it was revealed that, the suicide of the said student was due to the ragging and brutal manhandling by a group of students in the said college. On the basis of the same, twelve students of that college were suspended from the college as per order dated 22.2.2024 passed by the Dean of the College. Later, the 3rd respondent called for a report with respect to the said incident and the petitioner submitted a report as evidenced by Exhibit P5 on 28.02.2024. Thereafter, Ext.P1 order was issued by the 3rd respondent, suspending the petitioner, with immediate effect. The said communication was dated 2.3.2024. This Writ Petition is submitted by the petitioner in such circumstances, challenging Exhibit P1 suspension order by mainly contending that, the 3rd respondent is not vested with the power to suspend the petitioner, as there is no express provision in the Kerala Veterinary and Animal Sciences University Act, 2010 (hereinafter referred to as ‘the Act 2010’) or the Statutes made thereunder. The petitioner also contends that, he cannot be held responsible for the incident referred to above as the same occurred in a constituent college which was under the direct control and supervision of the Dean of University. It was also contended that, the petitioner was out of station when the incident occurred on 18.2.2024 and he came to know about the ragging and manhandling of the deceased by the students only on 21.2.2024, when the Anti-Ragging Cell of the UGC sent an E-mail to the University. Immediately the students who were allegedly involved, were suspended. Therefore, it was pointed out that, there was no lapses or dereliction of duty on the part of the petitioner, so as to warrant an order of suspension and inquiry in this regard.
3. A detailed counter affidavit has been submitted on behalf of the 3rd respondent denying the averments in the Writ Petition. It was averred that, the ill-treatment of the deceased by a group of students commenced on 16.2.2024 and he was subjected to continuous torture thereafter, until he died on 18.2.2024. It was also averred that, the ill-treatment was made in front of the other students in the hostel, but yet none of the authorities were aware of the said incident. Even when the body of the deceased was found hanging, there were visible injuries on the body which gave clear indication as to the torture meted out to him, but yet no inquiry was initiated with respect to the same, until a complaint in this regard was submitted by the Anti-Ragging Cell of the UGC on 21.2.2024. It was also the specific case of the 3rd respondent that, the fact that none of the students complained about the incident, despite the fact that it was a case of continuous torture since 16.2.2024, itself indicates that, the said students had no faith on the authorities concerned. It is also averred that, the 3rd respondent had initiated proceedings by suspending the petitioner and also commenced the inquiry invoking his powers under Section 9(9) of the Act,2010. As part of the same, a former Judge of this Court has been appointed as the Commission of Inquiry as mandated in the Act, 2010. As regards the authority to suspend, it was averred that, since the 3rd respondent is the appointing authority of the petitioner herein, there is an implied power to suspend him by keeping him out of service, which is intended to ensure a fair and impartial inquiry. The dismissal of the Writ Petition was sought in such circumstances.
4. A reply affidavit has been submitted by the petitioner, in response to the averments contained in the counter affidavit wherein, it was pointed out that, the petitioner was not at station when the incident occurred. On 21.2.2024, when the complaint from the Anti-Ragging Cell of UGC was received by the University, the Dean was on leave. Considering the seriousness of the issues, the petitioner immediately cancelled the leave of the Dean and directed him to convene the meeting of the Anti -Ragging Committee, to take a decision in the matter. Accordingly, on 22.2.2024, twelve students were suspended from the college pending inquiry. Thereafter, a complaint was received from the mother of the deceased seeking assistance of the University in the investigation which was promptly replied by the petitioner extending all possible helps. A report in this regard was also forwarded to the 3rd respondent.
5. Heard Sri. V. Varghese, the learned counsel appearing for the petitioner, Sri.T.B. Hood, the learned Special Government Pleader appearing for the 1st respondent, Sri. Manu Govind, the learned Standing Counsel for the 2nd respondent, Sri. P. Sreekumar, the learned Senior Counsel appearing for the 3rd respondent and Sri.George Poonthottam, the learned Senior Counsel appearing for the Additional 4th respondent.
6. The main challenge in this Writ Petition pertains to the authority of the 3rd respondent to place the petitioner under suspension pending inquiry. The specific case advanced by the learned counsel for the petitioner is that, the statutory stipulations contained in the Act, 2010, do not contemplate any power upon the 3rd respondent/Chancellor to place the petitioner under suspension. It was pointed out that, Ext.P1 order was issued by the 3rd respondent invoking his powers under Section 9(9) of the Act, 2010, which provides for removal of the Vice-Chancellor from the office by an order in writing by the Chancellor on certain charges. It was also provided therein that, such removal can be done only when the charges are proved in an inquiry conducted by a person who is or has been a Judge of High Court or Supreme Court. Thus, it was contended that, since no specific power has been contemplated for suspension, the 3rd respondent should not have passed an order in the nature of Ext.P1. The attention of this Court was brought to various other statutory stipulations such as sub-sections (6) and (8) of section 9, where specific powers are conferred upon the Chancellor, to suspend any Member in the bodies of the University or the authorities of the University. It is the specific case of the petitioner that, the Vice-Chancellor will not come within any of the said sub-sections as he is neither a ‘Member of a body’ nor an ‘authority’ as defined under Section 2(b) of the Act, 2010. Thus, it was pointed out that, wherever, the legislature wanted to confer the power to suspend, upon the Chancellor, the same has been specifically provided in the Act, whereas in the case of Vice-Chancellor, no such powers have been assigned to the Chancellor specifically. Therefore, the order now passed by the 3rd respondent suspending the petitioner was without any lawful authority, contends the learned counsel for the petitioner.
7. The learned Special Government Pleader, supported the said contentions by contending that, as far as the post of Vice-Chancellor is concerned, the same is a superior post where the relationship between the Chancellor and the Vice-Chancellor cannot be treated as the one in the nature of Master-Servant. Therefore, in the absence of any specific provision enabling the Chancellor to suspend the Vice-Chancellor, the order of suspension could not have been issued by the 3rd respondent.
8. On the other hand, the learned Senior Counsels appearing for the 3rd and 4th respondents, opposed the said contentions by pointing out that, as the appointing authority of the Vice-Chancellor is the Chancellor, he has every right to suspend him for valuable reasons, as there is an implied power for the same. The reliance was placed on the statutory stipulations contained in Section 16 of the General Clauses Act, 1897 wherein it is contemplated that, the power to suspend includes power to dismiss.
9. The learned Senior Counsel for the 3rd respondent also places reliance on the decisions rendered by the Hon'ble Supreme Court in Balvantray Ratilal Patel v. State of Maharashtra [AIR 1968 SC 800], State of Orissa v. Bimal Kumar Mohanty [(1994) 4 SCC 126], Government of India, Ministry of Home Affairs and Others. v. Tarak Nath Ghosh [(1971) 1 SCC 734]
10. After carefully going through the statutory provisions, and the decisions rendered by the Hon'ble Supreme Court in this regard, I do not find the arguments of the learned counsel for the petitioner as convincing. As rightly contended by the learned Senior Counsel for the 3rd respondent, Section 9(9) of the Act, 2010 specifically confers the powers upon the 3rd respondent to remove the Vice-Chancellor, on the charges of misappropriation, misconduct, mismanagement of funds or any other good and sufficient reason. The said provision reads as follows:
“9(9) The chancellor shall have the power to remove the Vice-Chancellor from office by an order in writing on charges of misappropriation, misconduct, mismanagement of funds or any other good and sufficient reason:
Provided that before taking action under this sub -section such charges shall be proved by and inquiry conducted by a person who is or has been a Judge of High Court or Supreme Court appointed by the Chancellor for the purpose:
Provided further that Vice-Chancellor shall not be removed under this section unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him”
It is discernible from the records that, an inquiry in this regard has already been commenced. In response to the contention raised by the learned Senior counsel for the 3rd respondent, the learned counsel for the petitioner pointed out that, as far as the stipulations contained in General Clauses Act, 1897 are concerned, the same cannot be made applicable as the said provision deals with the Central Acts and regulations. According to him, the relevant provision applicable to the facts of this case is Section 15 of the Interpretation of General Clauses Act, 1125 as the Kerala Veterinary and Animal Sciences University Act, 2010 is a State enactment. The said provision reads as follows:
“15. Power to appoint to include power to suspend or dismiss.-Where by any Act, a power to make any appointment is conferred, then unless a different intention appears, the authority having for the time being power to make the appointment shall also have the power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.”
As per the same, the power to suspend or dismiss any person is conferred upon the appointing authority, unless a different intention appears from the statutory scheme of the Act. Here, the contention of the petitioner is to the effect that, since the power to suspend is specifically conferred upon the Chancellor as per Sub sections 6 and 8 of Section 9 of the Act, 2010 in respect of the members in the bodies in the University or the authorities of the University, the absence of similar provision with regard to the suspension of Vice-Chancellor, is an instance, which clearly indicates, a different intention of the legislature.
11. However, I am not inclined to accept the said contention. As regards the provisions relating to the suspension of ‘the members in the bodies’ or the ‘authorities’ of the University, a clear distinction can be drawn, in view of the fact that, the appointing authority of the ‘members in bodies’ or the ‘authorities’ are not the Chancellor, which is an admitted position. As far as Section 16 of the General Clauses Act, 1897 or Section 15 of the Interpretation and General Clauses Act, 1125, as the case may be, the stipulations contained therein are with respect to the powers conferred upon the appointing authority. Since, the Chancellor is not the appointing authority for the ‘members in the bodies’ or ‘authorities’ of the University, a specific stipulation for the power to suspend cannot be treated as a factor which indicates a different intention. On the other hand, such specific conferment of power can only be understood to enable the Chancellor to exercise such powers as he was not otherwise vested with an implied power, since he is not the appointing authority. In other words, the specific conferment of power as per sub section 6 and 8 of section 9, upon the Chancellor, to suspend the ‘members in the bodies’ or ‘authorities’ of the University, fortifies the contention raised by the learned Senior Counsel for the 3rd respondent, as to the implied power of the Chancellor. This is because, as far as the power of the Chancellor to suspend the Vice-Chancellor is concerned, it was not necessary to be specifically provided for, as it is an implied power vested upon him being the appointing authority, by virtue of the provisions in the General Clauses Act.
12. There is yet another aspect which fortifies the contention regarding the implied power of the appointing authority to suspend. The position of law in this regard is well settled as per various decisions rendered by the Hon'ble Supreme Court. In Tarak Nath Ghosh’s case (supra), the Hon'ble Supreme Court explained the meaning of 'suspension' after referring to the Oxford Dictionary as “the action of debarring or state of debarred especially for a time, from a function or privilege, temporary deprivation of one's office or position”. It was further observed by the Hon'ble Supreme Court in the said decision that, a master can, subject to contract of service, ask his servant not to render any service without assigning any reason but this would not be by way of punishment and Master would have to pay the servant his full wages or remuneration in such an eventuality.
13. A constitution Bench of the Hon'ble Supreme Court considered this issue in R.P.Kapur v. Union of India [AIR 1964 SC 787], the following observations were made:
“The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of government, the employer in the case of government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him.”
14. In Balvantray Ratilal Patel’s case (supra), it was observed as follows:
4. The first question to be considered in this appeal is whether Government had the power to suspend the appellant by its order dated February 13, 1950 pending enquiry into his alleged misconduct. It was contended on behalf of the appellant that the power to suspend 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. It was urged that there was no express provision in the Bombay Civil Services Rules granting a power to the Government to suspend a Government servant pending enquiry into the allegations made against him. The argument was put forward that in the absence of any express provision either in the contract of employment or in any statute or statutory rules governing such employment, there was no power to suspend a public servant pending inquiry into the allegations of his misconduct. We are unable to accept the argument put forward on behalf of the appellant as correct. The general law on the subject of suspension has been laid down by this Court in three cases viz. Management of Hotel Imperial, New Delhi v. Hotel Workers Union [(1960) 1 SCR 476] , T. Cajee v. U. Jormanik Siem [(1961) 1 SCR 750] , and R.P. Kapur v. Union of India [(1964) 5 SCR 431] . It is now well settled that the power to suspend, in the sense of a right to forbid a servant 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 power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. This principle of law of master and servant is well-established : (See Hanley v. Pease & Partners, Ltd. [(1915) 1 KB 698] , Wallwork v. Fielding [(1922) 2 KB 66] , and the judgment of Cotton, L.J. in Boston Deep Sea Fishing and Ice Co. v. Ansell [(1888) 39 Ch D 339] ). It is equally well settled that an order of interim suspension can be passed against the employee while an inquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld. In this connection it is important to notice the distinction between suspending the contract of service of an officer and suspending an officer from performing the duties of his office on the basis that the contract is subsisting. The suspension in the latter sense is always an implied term in every contract of service. When an officer is suspended in this sense it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the time the officer is legally dismissed he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey.
5. The general principle therefore is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension. On the other hand, if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment will be made in accordance therewith. This principle applies with equal force in a case where the Government is an employer and a public servant is an employee with this qualification that in view of the peculiar structural hierarchy of Government administration, the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned. It follows therefore that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. On general principles therefore the government like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. The Government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. As we have already pointed out, the question as to what amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions of the statute or statutory rules made in that connection.
The said decisions were followed by the Hon'ble Supreme Court in Bimal Kumar Mohanty’s case (supra) and it was observed as follows:
“…...Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc.”
15. Thus, from the observations made by the Supreme Court in the above decisions, it is clear that, a specific conferment of power is not necessary for an appointing authority to pass an order of suspension. Even if there is no specific provision for suspending the person concerned, that will not preclude the appointing authority from issuing an order of suspension and the only consequence in such circumstances is that, in a case where the order of suspension was passed without any specific provision in this regard, the person who was suspended will be entitled for full wages during the period of suspension. Thus, on this reason also, the lack of any express provision enabling the Chancellor to suspend the Vice-Chancellor, cannot be a ground to interfere with the order of suspension now passed as per Ext.P1.
16. As regards the contention raised by the learned Special Government Pleader relating to the superior status of the Vice-Chancellor, and the lack of any Master-Servant relationship between the Chancellor and Vice-Chancellor, I am of the view that, the same also cannot accepted. This is particularly because, the specific case of the 3rd respondent is that, the petitioner has to be kept away from his functions in the University for the time being, to ensure a just, fair and proper inquiry in this regard. As rightly pointed out by the learned Senior Counsel for the 3rd respondent, the inquiry in this regard has already been commenced as evidenced by Ext.R3(a) notification and obviously almost all the persons to be examined as part of inquiry are under the control or supervision of the Vice-Chancellor. Therefore, as the inquiry is directed against the Vice-Chancellor, if he is not kept out of the power during the course of such inquiry, in all probabilities, there will be hesitation from the part of the staff and students concerned, to speak truth by taking a bold stand. This would adversely affect the fairness of the inquiry, which requires to be conducted in an unbiased manner. This situation was specifically taken note of the Supreme Court in Bimal Kumar Mohanty’s case (supra) by making the observations to the effect that, the suspension is to refrain the person concerned to avail further opportunity to perpetrate the alleged misconduct or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses. Therefore, the purpose of Ext.P1 order is evidently to keep the petitioner away from the powers as an interim measure, until the inquiry is completed with an intention to ensure fair and transparent inquiry. Therefore, the implied powers exercised by the 3rd respondent cannot be strictly construed as one flowing from a Master-Servant relationship between the Chancellor and the Vice-Chancellor, but on the other hand, it can only be understood to be an exercise, in the status of appointing authority for ensuring a fair inquiry. In such circumstances, the superior nature of the position of the Vice-Chancellor cannot be a reason which would prevent the 3rd respondent from passing an order in this regard. On the other hand, such an order is absolutely necessary, as the superior position of the Vice-Chancellor is likely to affect the fairness of the inquiry adversely, if he is permitted to continue in power during the course of inquiry. While considering this issue, it is to be noted that, even though, the expression used in Ext P1 is ‘suspension’, the only meaning that can be assigned to the same, in the context of the relationship between the Chancellor and Vice Chancellor or considering the nature of the positions they are holding, is that, it was only an instruction to the Vice Chancellor, not to carry out his duties pending inquiry, as the functioning of the petitioner as the Vice Chancellor is likely hamper the prospects of a fair and impartial inquiry. Being an appointing authority and the head of the University, the Chancellor is empowered issue such instructions, for the welfare/goodwill of the University as a whole, as the Chancellor is duty bound to protect of the interests of the University, by ensuring an impartial inquiry.
17. It was also contended that, as per Ext P1, the 3rd respondent invoked his power section 9(9) of the Act, 2010, and the said power can be invoked only in respect of the charges of misappropriation, misconduct, mismanagement of funds or any other good or sufficient reasons. It was contended that, the contents of Ext P1 would not reveal any of such circumstances. I do not find it necessary to consider the said question at this stage. This is particularly because, in addition to section 9(9), section 12 (8) (i) provides that the Chancellor shall have the power to remove the Vice-Chancellor from the office by an order in writing on charges of misappropriation, misconduct, mismanagement of funds, or willful omission, refusal to carry out the provisions of the Act or for abuse of powers vested upon him. Thus, the said provision confers wider powers upon the Chancellor to remove the petitioner from service, than what is contemplated under section 9(9). The allegations raised against the petitioner in Ext P1 may fall under the said provision. Merely because, the said provision is not specifically mentioned in Ext P1, that will not preclude the 3rd respondent to invoke the powers vested upon him, as per section 12(8) of the Act, 2010. Thus, even if, the contention of the petitioner that the present allegations do not come under the purview of section 9(9) of the Act, 2010, is accepted for argument sake, Ext P1 will still be valid, by virtue of the powers vested upon the 3rd respondent as per section 12(8) of the Act, 2010.
18. Another contention raised by the learned counsel for the petitioner is that, the petitioner cannot be held responsible for the incident occurred in the said college. According to the learned counsel for the petitioner that, the incident occurred in a ‘constituent college’, which means a college owned and managed by the University (Section 2(i) of Act, 2010) and the Dean is the Chief Academic and Administrative head of the College. It was also contended that, immediately upon getting information, about the torture meted out to the deceased, necessary instructions were given by the petitioner to the Dean of the University and consequently, the students involved in the incident were suspended. First of all, this is a question of fact and the scope for considering the same in a proceeding of this nature is very much limited. Even while accepting that, the college where the incident occurred, was under the direct control of the Dean, the fact that, the college was situated inside the campus of the University where the office of the petitioner is situated cannot be ignored. It is discernible from the records that, the torture of the victim commenced on 16.2.2024 and the allegation is that, it continued till 18.2.2024. There is also an allegation that such torture was committed openly in front of the other students inside the hostel and until 21.2.2024 when a complaint in this regard was received from the Anti-Ragging Cell of UGC, no one in the University was aware of such illegal acts. As per the averments in the writ petition, the petitioner came to know about the torture only on 21.02.2014. In this regard, the contention of the 3rd respondent is that, there were visible injuries on the body of the deceased, when he was found hanging in the hostel and the same would not have remained unnoticed by the authorities concerned. In such circumstances, the contention of the petitioner regarding the lack of knowledge of the torture of the deceased, until 21.02.2024, appears to be not convincing, at least prima facie. This probably suggests maladministration or dereliction of duty of the persons concerned including the petitioner.. Therefore, this is a matter to be inquired into by conducting a fair and impartial inquiry. While making this observation, this Court specifically took note of the fact that, this is a serious incident which allegedly occurred inside a college campus in front of a large number of students and the deceased was allegedly subjected to inhumane torture for days together, which ultimately led to his suicide. Therefore, it is absolutely necessary that, all the persons responsible for such incident and the officials who, either willfully or negligently, did not take any steps to prevent such torture, before it escalated into the death of a person, shall also be proceeded against. Therefore, I do not find it proper to interfere with the process of inquiry now in progress.
In such circumstances, I do not find any merit in the contentions raised by the petitioner as I am unable to find any justifiable reasons to interfere in the proceedings now going on. Accordingly this Writ Petition is dismissed, without prejudice to the rights of the petitioner to raise all his contentions in the inquiry which is now in progress.
