Homchandhuri. J.
1.This writ petition is directed against the order dated 17. 1.89 placing the petitioner under suspension and the appellate order dated 9th March, 1989 passed by the Gov., dismissing the appeal filed against the order of suspension. The petitioner is the founding Principal of the Gauhati Commerce College and has been the Principal of the College since, 1962 The Gauhati Commerce College is a deficit grantinaid College and the management / administration of the College is governed by the provision of the Assam Aided College Management Rules, 1976, hereinafter called as ''the Rules'', which was framed in the exercise of power conferred by proviso to Clause (g) of section 21 of the Gauhati University Act, 1947 (Assam Act XVI of 1947) and proviso to Clause (f) of section 32 of the Dibrugarh University Act, 1965 ( Assam Act VIII of 1965). The Rules are statutory rules and binding on the Government as well, The provision of the Rules vests management/administration of the College to the Governing Body to be constituted as per provision of Rule 3 of the Rules. Subrule VIII (C) of the Rules provides that in deficit grantinaid Colleges, the Principal of College shall be nominated by the Government as the exofficio Secretary of the Governing Body of the College. In other aided Colleges, an outsider may be nominated by the Govt. as the Secretary and in that case the Principal of the College shall be nominated as Member and JointSecretary of the Governing Body of the college. Prior to framing the Assam Aided Colleges Management Rules, 1976, the administration and management of the aided colleges were regulated by the Assam Aided Colleges Management Rules, 1965 framed in exercise of powers conferred by provision of Clause (g) of section 21 of the Gauhati University Act, 1947. On framing of the Rules of 1976, the earlier Rules of 1965 stood repealed.
2. Being the Principal of the College, the petitioner had all along been the exofficio Secretary of the Governing Body of the Gauhati Commerce College till the present Governing Body was constituted in the year 1986. In the present Governing Body of the College, the petitioner has not been made Secretary and instead the VicePrincipal of the College has been made Secretary by the Government although as per mandatory provision of the Rules the Principal of the College should be the exofficio Secretary of the Governing Body. The petitioner''s contention is that as he happens to contest the last Election held in December, 1985, for Member of the Lok Sabha Seat, as a candidate sponsored by the Congress (1) party, Government has not made him the Secretary of the Governing Body of the College constituted in the year 1986. The petitioner states that he contested the Election after taking leave and after his defeat when he wanted to join the post of Principal of the College, he was not allowed to join due to great resistance from a vested interested political circle and ultimately he was allowed to join on being directed by this Court. The petitioner contends that the present Governing Body constituted in the year, 1986, has not been validly constituted and that the present Governing Body of the College since its constitution subjected the petitioner to unnecessary harassment and untold humiliation and even initiated a disciplinary proceeding on false and baseless allegations, which the petitioner had to impugn in this Court in a writ petition registered as Civil Rule No. 1258/87, in the said Civil Rule, this Court initially stayed the disciplinary proceeding pending disposal of the Rule. However, at the instance of the Governing Body, this Court modified the order to the extent of allowing the Governing Body to continue with the proceedings and to complete thereof but not to pass any final order till disposal of Civil Rule No. 1258/87. The said Civil Rule has not yet been disposed of. Having thus failed to achieve their goal of removing the petitioner from the post of Principal the majority members of the Governing Body of the College initiated the instant disciplinary proceedings against the petitioner on some nonexistent allegation and has placed him under suspension by the impugned order just to harass and humiliate the petitioner.
3. The petitioner states that as founder Principal of the College since 1962 he worked hard for the development of the Gauhati Commerce College and the College has been developed as the premier College in the State. Although he was not made a Secretary of the present Governing Body, however, in his own initiative as a Principal of the College he submitted proposal for some developmental scheme for the College to the University Grants Commission ( U.G.C. ) for financial assistance during the 7th Five Year Plan period and obtained an approval of the proposals in August, 1987 and he informed the Governing Body by letter dated 25.8.87 about the approval. The Governing Body by its meeting dated 11.9.87 by a resolution accepted the terms and conditions of the UGC in respect of the approval of the proposal and the said resolution was sent to the UGC and in reply thereto, received on 6.6.88, the UGC asked the College to submit the scheme plan as per norms and procedure laid down by UGC for releasing the grant by the Commission. The petitioner forwarded the said letter of 6.6.88 to the Governing Body for necessary order. However, in the meantime on 4.6.88 the Governing Body, held a adjourned meeting illegally without complying the provision of Rule 15 of the Rules and in the said meeting a Building Committee was constituted by adding a new item in the Agenda of the meeting in spite of objection. The Building Committee was constituted for making scheme/plan as per the norms of the U.G.C. to get grants from University and consisted of the following Members, (1) Sri Subrata Chakraborty, Superintending Engineer, P.W.D, Got. of Assam, (2) Sri Nabin Saikia, Senior Architect, P.W.D,, Got., of Assam, (3) Inamur Rasul, Member, Governing Body, (4) Dr. B.C., Lahkar, Principal of the College, (5) Sri Pradip Bhuyan, Engineer, . Member, Governing Body of the College. (6) Sri Indrajit Barua, Engineer, Member, Governing Body of the College and (7) Sri S.K, Dey, VicePrincipal & Secretary, Governing Body of the College, In, the said resolution of the Governing Body, the Principal was requested to take initiative and necessary steps for preparation of the said scheme and plan and sending the same to the UGC for early release of the grants. After receipt of the copy of the resolution from the Secretary of the Governing Body, the petitioner by his letter, dated 28.10.88, with copies to the President and other Members of the Governing Body, intimated that the processing of developmental matters etc. for receiving grant of the UGC were to be dealt with by the Secretary of the Governing Body. As such, the resolution was not acceptably to him by which he was requested to take steps for making scheme, and plan. Governing Body in its meeting dated 28.10.88 took exception to the petitioner''s letter and decided to ask explanation from him as to why disciplinary action would not be taken against him for disobeying and defying the direction of Governing Body ma4e in its resolution dated 4.6.88 and authorised the Secretary to issue memo asking explanation of the petitioner in terms of the resolution.
4. Thereafter, the Governing Body in its meeting dated 28.lj2.8ii by a resolution decided to take disciplinary action against the petitioner and to place him under suspension in taking into account that the College would lose an amount of Rs, 5,44,624/ under 7th Plan proposals of the LGC due to deliberate failure of the petitioner to prepare schemes and plans of the UGC in spite of direction by the resolution dated 4.6.88 and resolution dated 28.10.88, The Governing Body also took exception to the contests of the latter of the petitioner dated 27.12.88 addressed to the Secretary of, the Governing Body and according to the Governing Body contents of the letter was intemperate, insolent and amounted to commission cf gross misconduct. From the said resolution it appears that the petitioner by his letter dated 12.12.88 requested the Secretary of the Governing Body to make the UGC papers and files available to him for completion of his explanation as asked for time. But when th4'' Secretary placed the same before the President of the Governing Body for consideration the President advised the Secretary to place the same before the next Governing Body meeting. It also appears from the resolution that the petitioner submitted his explanation and asked for personal hearing but the Governing Body decided not'' to accept the written explanation as he did not file it in time. The''resolution1was submitted before the Director of Public Instruction, Assam for approval, who by letter dated 12.1.89 accorded approval to the Governing Body resolution dated 28.12.88 to suspend the petitioner and thereafter by order dated 17.1.89 the petitioner was placed under suspension. On the same date a chargesheet with the statement of allegation was also issued to the petitioner by a separate memo dated 17.1.89. The petitioner challenged the order of suspension in a writ petition registered as Civil Rule No. 97/89 which was posted for consideration on 27.1.89. It being submitted by1 the learned Govt. Advocate that an appeal would lie against the impugned order of suspension before the Govt., this Court by order dated 27.1.89 disposed of the Civil Rule 97/89 observing that the petitioner might prefer appeal before the Govt., which may be disposed of by the appellate authority. The petitioner filed an appeal before the Secretary to the Govt. of Assam, Education Department, Dispur and the Secretary to the Govt. of Assam by Border dated 14th February, 1989, disposed of the appeal petition holding that the appeal was incompetent and premature. The petitioner has again approached this Court in the instant petition. This Court issued Rule on 27.2.89 and by the said order set aside the appellate order dated 14.2.89 and directed the Chief Secretary to the'' Govt. of Assam to consider the appeal filed by the petitioner and pass order in accordance with law and further directed that the ''Civil Rule be posted for order on 7th March, 1989. On 7th Mach, 1989 on the prayer of the Advocate General, Assam, the petition was listed for orders on 13.3.89. On 13.3.89 again the matter was adjourned for two days. In the meantime, the Govt. by the impugned order dated 9th March, 1989 disposed of the appeal of the petitioner rejecting the said appeal. The petitioner by an amendment petition have impugned the said appellate order dated 9th March, 1989. The writ petition was heard on merit on 30.3.89 and 31.3.89.
5. Mr. N. M. Lahiri, learned counsel for the petitioner has submitted that on perusal of the allegations made in the resolution dated 28.12.88 read with chargesheet, it is apparent that there is no prima facie case warranting disciplinary action far less placing the petitioner under suspension. The learned counsel for the petitioner has submitted that the impugned order is arbitrary, motivated and exfacie malafide, inasmuch as, (i) the petitioner is the, founding Principal of the College and by dint of his hard labour since 1962, the College has become a premier college in the state. The petitioner had all along been the Secretary of the Governing Body of the College but with the formation of the present Governing Body in the year 1986, the petitioner was not made the Secretary of the Governing Body of the College in violation of the mandate of the provision of subrule VIII (C) of Rules 3 of the Assam Aided College Management Rules, 1976. (ii) It is apparent, from the facts and back ground that the present Governing Body since its constitution in 1986, by the present Govt. has been trying to rope the petitioner in departmental proceeding and to remove him from the post of Principal on some pretext. This is also established by the fact that earlier a disciplinary proceeding was initiated against the petitioner on some unfounded and frivolous allegations, which is sub judice in Civil Rule No. 1258/87 in this Court. (iii) The duties and functions of the Secretary of the Governing Body is prescribed under Rule 21 of the Rules while the''" duties and functions of the Principal is prescribed in Rule 23 of the Rules and it being the prescribed duty of the Secretary to deal with the matters in respect of grants etc. from the Govt.. and University Grants Commission .and it not at all being the duty and function of the Principal, it is unreasonable and unjust to request the petitioner to discharge exclusive function of the Secretary of the Governing Body while he was stripped of the post of Secretary of the Governing Body in violation of statutory rules and that the petitioner did not commit any wrong in expressing his inability by his letter dated 18.6.88 to comply with the request of the Governing Body as per its resolution dated 4.6.88 to discharge the duties of the Secretary while another incumbent, namely, the VicePrincipal was holding the post of Secretary of the Governing Body.
6. It has been submitted that the Governing Body in conformity with the norms and procedure of the UGC have constituted a Building Committee by its resolution dated 4.6.88 consisting of 7 members which included the petitioner. It was the function of the Building Committee to prepare the scheme and plan and estimates as per norms and procedure of the UGC. The petitioner was not at all responsible for making the plan or scheme and that it was the duty and responsibility of the Secretary to see that the Building Committee prepare the scheme and plan of the building project ,for onward transmission thereof to the UGC by the Principal of the College Unless the scheme or plan and estimates is prepared by the . Building Committee, the question of submission thereof by the petitioner before the UGC, in discharge of his duty as Principal, did not arise. As such, ''there is no foundation or basis of the allegation on the basis of which ''the charges are framed and petitioner is placed under suspension. The allegation of using intemperate language and being discourteous and insolent which amounts to gross misconduct, ought to be made out from the letter of the petitioner dated 27.12.88 (Annexed in AnnexureN to the writ petition), is wholly arbitrary. In the said letter the petitioner stated that he was humiliated in the Governing Body meeting and that sometimes very harsh orders were passed against him and in the last sentence he stated that from the tone of the language and contents of resolution of the Governing Body meeting dated 28.10.88 he found that Governing Body was biased against him and politically motivated to harass him. The expression in the last sentence under no circumstances is tantamount to gross misconduct warranting disciplinary proceeding. As regards the appellate order passed by the Govt. the learned counsel for the petitioner has submitted that the order is arbitrary and illegal and without jurisdiction, inasmuch as, the appellate order arbitrarily decided the entire case on merit against he petitioner although materials on record clearly established that the allegations on the basis of which disciplinary proceeding was initiated against the petitioner and the petitioner was placed under suspension, are nonexistent. The appellate authority has not at all consider the facts and grounds stated in the appeal. As such, the appellate order is also liable to be set aside.
7. Mr. P.O. Baruah, learned counsel for the Governing Body of the College has submitted that the petitioner has been placed Under suspension during the pendency of the departmental proceeding initiated against him and he has been served with the chargesheet also. The order of suspension was passed in conformity with the statutory rules and by the competent authority. In support of this contention the learned counsel has placed reliance in the case of Shyam Lal Yadav & ors. vs. Smt. Kusum Dhawan & on., ( AIR 1979 SC 1247 ). The learned counsel has also submitted that the allegations made in the charges framed against the petitioner discloses a prima facie case of insubordination and misbehaviour and gross misconduct and the Governing Body is competent to suspend the petitioner during the pendency of; the departmental proceeding. The learned counsel has submitted that because of the petitioner''s noncooperation and negligence, the scheme and plan of the Building Committee could not be submitted before the UGC and consequently the College was going to lose a substantial sum of grant from the UGC amounting to Rs. 5,44,624/ during the 7th Five Year Plan period. The learned counsel has drawn out attention to Clause 9 of the Procedure for preparation of plan and estimates for various approved building project of the UGC, and has contended that unless the petitioner cooperates the scheme and plan and estimates of the College could not be submitted before the UGC since the Clause contemplates that the Principal of the College is to submit the same. Learned counsel has also drawn our attention to the finding in the appellate order, wherein the appellate authority in the impugned order dated 9th March, 1989, held "If Dr. Lahkar would not have been suspended and other teacher of the college could not have been inducted as the Principalin charge it would have been a serious lapse on the part'' of the" authority, inasmuch as, the aforesaid two amounts sanctioned by the UGC for carrying out the scheme and plan for the development of the college would not be materialised." Learned counsel submits that for the interest of the College, namely, to receive the grant from the UGC Under the 7th Five Year Plan, keeping the petitioner under suspension is imperative. He has further submitted that the appellate authority has upheld the order of suspension only on the basis of the allegations for failure on the part of the petitioner to take steps for preparation of the schemes and ''estimates and submission there of to the UGC and the appellate authority did not rely on the other allegations, namely, using of intemperate language, discourteous and insolent behaviour as found in the letter dated 27.12.88 of the petitioner. The learned Government Advocate has submitted that the appellate ''order does not suffer from any infirmity warranting interference of this Court.
8. We have considered the submissions made on behalf of the petitioner as well as on behalf of the respondents confining to the question as to whether the impugned order placing the petitioner under suspension can be sustained. Normaly, this Court in the exercise of jurisdiction under Article 226 of the Constitution, would not interfere with the order of suspension passed by the employer, to undo the acts of internal management against its employee. If, however, the reason and ground for passing the order of suspension is apparently nonexistent and power to suspend has been exercised arbitrarily or there is no prima facie case to place the employee under suspension; this Court cannot fold its hands and remain a Silent spectator and deny appropriate relief to the aggrieved employee. It is the case of the respondent that it has became necessary to place the petitioner under suspension since due to his noncooperation and/or refusal to discharge his function, the College was going to lose a substantial amount of building grant from the UGC and that if the petitioner could not have been suspended another teacher could not have been appointed as Principalincharge of the College. The College would have lost a substantial amount of building grant amounting to Rs. 5,44,624.00 from the UGC.
9. To appreciate the contentions of the respondent it is appropriate to quote Building Committee and its composition and function as provided in the guidelines of the University Grants Commission and Clause 9 of the Procedure for preparation of plans and estimates for various approved building projects of the University Grants Commission on which the learned counsel of the Governing Body placed reliance.
"1. Building Committee and its composition and functions.
1. Each University/deemed to be University should have a Building Committee consisting of ViceChancellor or his nominee nor below the rank of CPWD/PWD of the level of the Superintending Engineer, a representative of the Planning Board, Finance Officer, University Engineer, University Architect/Govt. Architect and Registrar as member Secretary. In the case of Colleges the Building Committee should have a representative each of the Management and the local P. W. D. not below the rank of Assistant Engineer, Govt. Architect if available in the city and the Principal.
2. The composition of the Building Committee should be intimated to the University Grants Commission immediately after it is constituted.
3. The Building Committee should be responsible for finalising the plans and estimates of the various building projects approved by the Commission and for ensuring completion of the building in accordance with the accepted plans and estimates and proper utilisation of the grants received from the University Grants Commission and the State Government/ University /College."
"11. Procedure for preparation of plans and estimates for various approved building projects.
(1) ...
(2) ...
(3) ...
(9) After this scrutiny has been done and necessary modifications made, the plans and estimates for a building construction project should approved by the Building Committee of the educational institution and in the meeting concerned the CPWD/PWD Engineer member should invariably be present. An appropriate certificate from the Head of the Institution (Registrar or Principal) to the effect that preliminary plans and estimates have been scrutinised by the CPWD/PWD, and these have approved by the Building Committee at a meeting in which the representative of the CPWD/PWD was present and that these are in accordance with the norms laid down by the University Grants Commission, should be sent to the UGC along with the proposal".
It is also necessary to quote the relevant portion of Rule 21 and 23 of Assam Aided Colleges Management Rules, 1976.
"21. The followings are particular duties and functions of the Secretary of the Governing Body of deficit colleges.
(i) He is received and draw all grants sanctioned by the State Government/Government of India and University Grants Commission from time to time.
(ii) To utilise the grant for the purpose {or which it is sanctioned and submission of utilisation certificate of the grant to the sanctioning authority in time with intimation to the Director of Public Instruction.
23. Except where it is ordered otherwise by general or special orders, the Governing Body will leave to the Principal all routine matters in connection with arrangement of classes, admission and transfer of pupils, settlement of class routine, periodical examinations, awarding of class promotion and all matters of routine relating to instruction, administration and discipline and control of pupils and staff. If however any complaint, it will be open to the Governing Body to depute one or more members of Governing Body to make an enquiry in these matters if necessary and take appropriate action. A copy of the enquiry report together with action taken by the Governing Body shall be submitted to the Director of Public Instruction and to the Gauhati University, Dibrugarh University; Except as provided under these rules all matters relating to disbursement of money on account of scholarships/stipends to students, the Principals concerned shall be held responsible to the Government for any omission/ commission in this regard and the Government shall have the power of appointing authority for placing them under suspension and of disciplinary authority for taking disciplinary action against them under the relevant provision of the Assam Services (Discipline and Appeal) Rules, 1964 and any other rules framed by the Government from time to time in this behalf."
From the plain reading of the aforesaid provisions of Rule 21 and 23 of the Rules it is clear that it is the duty and function of the Secretary of the Governing Body to take steps in respect of receipt of grants from the University Grants Commission and utilisation thereof. It is also clear from the guidelines of the U.G.C. that the Building Committee is responsible for finalisajion of the plans and estimates of the various building projects approved by the U.G.C. Clause 9 of the procedure contemplates that Principal is to forward the scheme prepared and approved by the Building Committee with necessary certificate to the UGC. Unless the scheme/plan estimates is prepared by the Building Committee, the question of forwarding the scheme and plan estimates of the Building Committee by the Principal of the College to the UGC does not arise. Admittedly, the plans and estimates of the Building project of the College was not prepared by the Building Committee as contemplated under the norms and guidelines of the UGC, before the petitioner was placed under suspension. The learned counsel for the Governing Body also could not confirm whether the plan or estimates of the Building of the College by the Building Committee has yet been prepared. To our query, as to who should convenor of the meeting of the Building Committee of the College, the counsel for the Governing Body has submitted that Convenor would be the Secretary of Governing Body of the College.
11. From what is stated above, we are unable to accept the non existent reasons and grounds on which the impugned order of suspension if sought to be sustained, and that being so, the impugned order of suspension dated 17.1.89 and the appellate order dated 9.3.89 cannot be sustained in law and are set aside and quashed.
18. We make it clear that nothing of the observation and the decision in this writ petition shall effect the merit of the disciplinary proceeding initiated against the petitioner.
12. The petition is allowed with costs of Rs. 500/.
A. Raghuvir, C, J. I agree.
