PETITIONER:
VICE-CHANCELLOR, JAMMU UNIVERSITY & ANR.
Vs.
RESPONDENT:
DUSHIANT KUMAR RAMPAL
DATE OF JUDGMENT23/02/1977
BENCH:
BHAGWATI, P.N.
GUPTA, A.C.
SHINGAL, P.N.
CITATION:
1977 AIR 1146 1977 SCR (3) 43
1977 SCC (2) 616
ACT
J & K Universities Act, 1969--SS. 13(4), 51, 52 and statue
24(ii)-Scope of--Vice-Chancellor--If campetent to suspend a
teacher--Suspension--Effect of.
HEADNOTE
The Jammu and Kashmir University, which was a university
constituted under the Jammu and Kashmir University Act,
1965, was bifurcated into two universities-one for Jammu
area and the other for Kashmir area--by an act called the
Jammu and Kashmir Universities Act, 1969. Statute 2 made
under the 1965-Act required every teacher to sign the pre-
scribed agreement of service with the University. Clause
(6) of the agreement stipulated that in all matters the
teacher would abide by the statutes and regulations in force
in the university from time to time. The proviso to this
clause provided that no change in the statutes and regula-
tions in this regard shall be deemed to have adversely
affected the teacher.
Section 51 of the 1969-Act provides for continuing in
force the statutes and regulations made under the 1965-Act;
but s. 48(2) empowered a special officer to propose modifi-
cations necessary to bring the statutes made under the
1965Act in conformity with the provisions of the 1969-Act
and if such modifications were approved by the Chancellor
they were deemed to have been made by the competent author-
ity under the 1969-Act. Section 52(1) of the 1969-Act
provides that all employees of the university employed under
the 1965-Act shall continue in service on the same terms and
conditions as regulated their service before the commence-
ment of the 1969-Act. Sub-section (2) empowers the Chancel-
lor to allocate employees of the university (other than
those serving on contract) between the two new universities
and the allocation so made was deemed to be an appointment
to the post under the 1969-Act. The proviso to this sub-
section provides that in making such allocations the condi-
tions of service of employment of such employees shall not
be: varied to their disadvantage. Sub-section (4) provides
that all persons who were employed under the former univer-
sity on contract shall cease to hold such posts after 60
days from the commencement of the 1969-Act and all such
contracts with the former university shall stand terminated
on the expiry of 60 days.
Section 13(4) of the 1969 Act empowers the Vice-Chancel-
lor to take such action as he deems necessary in any emer-
gency which calls for immediate action. Section 13(6)
provides that the Vice-Chancellor shall be responsible for
the discipline of the University. Section 14(3) of the
1969-Act contained an identical provision as that contained
in s., 13(4) of the 1965-Act.
To bring the statutes under the 1965-Act in conformity
with the provisions of the 1969-Act modifications proposed
by the special officer under s. 48(2) of the 1969-Act were
approved by the Chancellor by his order dated December 24,
1969. This order substituted Chapter IV in the statutes by
a new chapter.
Acting under s. 52(4), the Chancellor made an order on
December 24 1969 directing that certain teachers shall
continue on the respective posts in the new Universities on
the terms and conditions embodied in Schedule II to the
order. Clause 9(ii) of the Schedule empowered the Vice-
Chancellor to suspend a teacher on grounds. among others of
misconduct.
The respondent, a teacher appointed under the. 1965-Act,
was transferred to the Jammu area by the Chancellor’s order
dated December 24, 1969. In exercise of the power under el.
9(ii) of Schedule II of the Chancellor’s order
44
and s. 13(4) of the 1969-Act, the Vice-Chancellor, by an
order dated May 21, 1970, suspended the respondent from
service. By another order dated June 6, 1970 the respondent
was allowed a subsistence allowance amounting to half his
pay and half D.A. which was later raised to 75% of his pay
and allowances.
The respondent’s writ petition under Art. 226 of the
Constitution challenging the suspension order of May 21,
1970, as well as the order dated June 6, 1970 was dismissed
by a single Judge of the High Court. On appeal the Division
Bench struck down the order of suspension as violative of s.
52(1) of the 1969-Act.
In appeal it was contended by the respondent that (1)
since his case was governed by s. 52(1) the order of Decem-
ber 24, 1969 made under s. 52(4) was invalid because the
terms and conditions set out in Schedule H to the order
altered his conditions of service; (2) statute 24(ii) was
invalid because it was not within the terms of s. 48(2) and
the statute was not necessary for bringing the statutes in
conformity with the provisions of the 1969-Act; (3) the
power to order interim suspension was a quasi-judicial power
and it would not be comprehended within the language of s.
13(4) and (4) s. 52(1) entitled him to continue in service
on the same terms and conditions as before and under s.
52(2) his conditions of service could not be varied to his
disadvantage; therefore neither statute 24(ii) nor s. 13(4)
could confer power on the Vice Chancellor to suspend him
which power the Vice-Chancellor did not have under the
earlier Act.
Allowing the appeal,
HELD: The Vice-Chancellor had the power to make the
order of suspension and he was within his authority in doing
so.
1. By reason of statute 2 read with el. (6) of the form
of agreement the respondent was bound by any changes made,
in the statutes from time to time and no change made in the
statutes was to be regarded as having adversely affected
him. Statutes made under the 1965-Act continued to be
applicable by reason of s. 51. To bring the statutes in
conformity with the provisions of the 1969-Act, modifica-
tions proposed by the special officer were approved by the
Chancellor by his order dated December 24, 1969 and by
reason of s. 48(2) they were deemed to have been made by the
competent authority under the 1969-Act. This order substi-
tuted Chapter IV in the Statutes by a new Chapter and stat-
ute 24(ii) made the same provision as el. 9(ii) of Schedule
II to the order made under s. 52(4). If statute 24(ii) were
a valid provision, the Vice-Chancellor would have power to
suspend a teacher and the order of suspension against the
respondent would be within the authority of the Vice
Chancellor. [53D-E]
Statute 24(ii) iS a statute validly approved by the
Chancellor under s. 48(2). [54H]
2(a) Section 13(6) has entrusted the Vice-Chancellor
with the task of maintaining discipline in the university
and the entrustment of this task carried with it, by neces-
sary implication, the Vower to take whatever action was
necessary for maintaining the discipline. Since s. 13(6)
was a new provision, it was necessary to make statutes for
enabling the Vice-Chancellor to discharge the responsibili-
ty of maintaining the discipline and for that purpose,
vesting power in him to suspend a teacher pending departmen-
tal enquiry against him. It was with this object of bring-
ing the statutes in conformity with s. 13(6) that statute
24(ii) was added by way of modification in the statutes by
the order of December 24, 1969. Moreover, there is nothing
in the 1969-Act which militates against vesting power in the
Vice-Chancellor to order interim suspension of a teacher.
The ChancellOr’s view that statute 24(ii) was necessary to
bring it in conformity with s. 13(6) cannot be said to be
erroneous. [54F-G]
(b) If statute 24(ii) is valid, the respondent would be
bound by it and in that event the order of suspension made
by the Vice-Chancellor would be within the power conferred
on him by that statute. [55B]
(c) Though the order of suspension did not recite stat-
ute 24(ii) it is wellsettled that when an authority makes an
order which is otherwise within its competence, it cannot
fail merely because it purports to be made under a wrong
45
provision of law, if it can be shown to be within its power
under any other provision; a wrong label cannot vitiate an
order which is otherwise within the power of the authority
to make it. [55B-C]
P.Balakotaiah v. Union of India, [1958] S.C.R. 1052 fol-
lowed.
3(a) It is not correct to say that an order of interim
suspension was a quasijudicial order and in any event the
language of s. 13(4) is sufficiently wide and comprehensive
to take within its scope and ambit every kind of action
considered necessary by the Vice-Chancellor in an emergency.
The order of suspension. made by the Vice-Chancellor was
plainly an order which he had the power to make under s.
13(4). [55F]
(b) Section 13(4) does not talk specifically of an order
of interim suspension of a teacher but the width and ampli-
tude of the language of the provision would clearly include
action by way of interim suspension of a teacher, when there
is in the opinion of the Vice-Chancellor, an emergency
calling for immediate action. [55E]
(c) The respondent’s contention that there was no emer-
gency which called for immediate action on the part of the
Vice-Chancellor and, therefore, the order of suspension
could not be justified, cannot be entertained by this Court
because no such averment had been made in the writ petition.
[55H]
4(a) The respondent could not complain of any infraction
of the provisions of s. 52(1). Since statute 24(ii) was a
statute validly made the Vice-Chancellor was entitled to
make the order of suspension. The Vice-Chancellor could
also avail of s. 13(4) for sustaining the order of suspen-
sion since it conferred the same power on him as s. 13(4) of
the 1965-Act and exercise of the power conferred by it as
against the respondent did not involve any violation of the
provisions of s. 52(1). [57D-E]
(b) Section 52(1) continued the service of a teacher on
the same terms and conditions as regulated his service
before the commencement of the 1969Act and that was subject
to the provisions of s. 52(2). But this subjection to the
provisions of sub s. (2) did not import the requirement set
out in the 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)" in s. 52(1)
were intended merely to clarify that a teacher shall contin-
ue in service on the same terms and conditions but subject
to any allocation which may be made by the Chancellor under
s. 52(2). Nothing in sub-s. (1) should be construed as
in any way derogating from the power of the Chancellor to
make an allocation of the teacher under s. 52(2). The
proviso imposed a limitation on the power of the Chancellor
to make an allocation by providing that in making such
allocation the conditions of service of the employee shall
not be varied to his disadvantage and it could not be
construed as a substantive provision adding a requirement
in sub-s.(1) that even though the terms and conditions of
service may permit alteration to the disadvantage of an
employee, such alteration shall be inhibited. [56H; 57A]
(c) Even if the respondent was entitled to continue in
service on the same terms and conditions as before by
reason of s. 52(1) these very terms and conditions provided
that he would be bound by any changes which might be made in
the statutes from time to time. If, therefore, any changes
were made in the terms and conditions of service of the
respondent by statutes validity made under the 1969-Act the
respondent could not complain of any infraction of the
provisions of s. 52(1). [57C-D]
5(a) The order of suspension suspended the contract between
the respondent and the university and neither the respondent
was bound to perform his duties under the contract nor was
the university bound to pay any salary to him. The respond-
ent was entitled to receive only such subsistence allowances
as might be payable under the rules and regulations govern-
ing his terms and conditions of service. [57G]
(b) Where there is power in the employer either by an
express term in the contract or by the rules governing the
terms and conditions of service to
46
suspend an employee, the order of suspension has the effect
of temporarily suspending the relation of master and servant
with the consequence that the employee is not bound to
render service and the employer is not bound to pay. In
such a case the employee would not be entitled to receive
any payment at all from the employer unless the contract of
employment or the rules governing the terms and conditions
of service provide for payment of some subsistence allow-
ance. [58H]
In the instant case the Vice-Chancellor had the power to
suspend the respondent under statute 24(ii) and the respond-
ent could not claim payment of his salary during the period
of suspension.
P. Gindroniya v. State of Madhya Pradesh, [1970] 3 SCR 448
followed.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1739 of
1973.
Appeal by Special Leave from, the Judgment and Order
dated 22.10.1973 of the Jammu and Kashmir High Court in
Letters Patent Appeal No. 9/72)
F.S. Nariman, O.C. Mathur, P.N. Tiwari and D.N. Mishra,
for the appellants.
Dushiant Kumar Rampal respondent. (in person)
The Judgment of the Court was delivered by
BHAGWATI, J., We pronounced our order on this appeal on
17th December, 1976 and we now proceed to give our reasons.
We may point out that the respondent was not represented by
a lawyer and he argued case in person and though he is a lay
man, not well versed in the science of law and in the art
and skill of advocacy, we must admit that he argued his case
with conspicuous ability.
Prior to 5th September, 1969 there was only one Univer-
sity for the entire territory of the State of Jammu & Kash-
mir, namely, the University of Jammu & Kashmir. It was
constituted under the Jammu & Kashmir University Act, 1965
(hereinafter referred to as the Act of 1965) and, as provid-
ed in section 20, its central authorities included the
Senate and the Central Council. The Central 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
47
lecturer. But it was common ground between the parties that
the conditions of service of the respondent were governed by
the provision set out in the form of agreement of service
annexed to the Statutes. Clause (6) of this agreement--and
this clause admittedly governed the respondent--stipulated
that in all matters, the teacher would "abide by the Stat-
utes and Regulations from time to time in force in the
University, and in particular, by those determining his/ her
grade, increment, conditions of service, rules of superannu-
ation and provident fund rules, provided that no change in
the Statutes and Regulations in this regard shall be deemed
to have adversely affected the teacher." The respondent was
thus clearly bound by any changes which might be made in the
Statutes from time to time and no change made in the Stat-
utes was to be regarded as having adversely affected the
respondent and he could not complain against it. The case
of the respondent was that he satisfactorily carried on his
duties as lecturer and earned his increments from year to
year.
On 5th September, 1969 the Governor of Jammu & Kashmir
promulgated Ordinance No. 10 of 1969 establishing in place
of the University of Jammu & Kashmir, two separate univer-
sities, namely, the University of Kashmir for the Kashmir
division and the University of Jammu for the Jammu division
of the State. This Ordinance was replaced by the Jammu &
Kashmir University Act, 1969 (hereinafter referred to as
the Act of 1969) which came into force on 30th October,
1969. The:Act of 1969 made a slight departure from the
earlier Act in the constitution of the various authorities
of each University, Section 20 of the Act of 1969 provided
that the authorities of each university shall include the
University Council and the Syndicate. The University Coun-
cil was constituted supreme authority of the university
while the Syndicate was entrusted with the chief executive
authority. Whereas under the earlier Act, the power to
appoint all teachers of the University was entrusted to the
Central Council. there was bifurcation of this power between
the University Council and the Syndicate under the Act of
1969. The University Council was given the power to appoint
teachers of the status of a reader and above white the power
to appoint teachers below the status of a reader was en-
trusted to the Syndicate. The Syndicate was thus the au-
thority under the Act of 1969 vested with the power to
appoint and that power would also carry with it 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 Stat-
utes 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 modifica-
48
tions, 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 modifica-
tions, alterations and additions proposed by the Special
officer shall, if approved by the Vice Chancellor, be deemed
to have been made by the competent authority under the Act
of 1969 and shall continue in force until altered or
superseded by the authority constituted under the Act of
1969. There was also the problem of ensuring continuance of
service of the existing employees of the University of Jammu
& Kashmir and their allocation between the two succeeding
universities and this problem was solved by the enactment of
section 52 in the Act of 1969. That section, in so far as
material, provided as follows:
"52. Continuance of service of the existing employees and
their allocation--Notwithstanding anything contained in this
Act or any Statute or Regulation made thereunder or in any
other law for the time being in force.
(1) all employees of the University of Jammu
and Kashmir constituted under the Jammu and
Kashmir University Act, 1965 (other than those
serving on contract. or on deputation ’in the
University or those serving m the Publication
Bureau of the University) who immediately
before the commencement of this Act, were
holding or discharging the duties of any post
of office in connection with the affairs of
the said University shall, subject to the
provisions of
sub-section (2), continue in service on the
same terms and conditions as regulated their
service before such commencement;
(2) the Chancellor may in consultation with
the pro Chancellor by order allocate the
employees of the University of Jammu & Kashmir
(other than those serving on contract or
deputation in the University or those serving
in the Publication Bureau of the University)
between the University of Kashmir and the
University of Jammu constituted under this Act
in such manner as he may consider necessary
and every such allocation shall be deemed to b e
an appointment, transfer or promotion as the
case may be,to the post or office by the
competent authority under this Act:
Provided that in making such allocations the
conditions of service of employment of such
employees shall not be varied to their disad-
vantage;
(3) x x x x
x
(4) all persons who immediately before the
commencement of this Act were holding or
discharging the duties of any post or office
in connection with the affairs of the Univer-
sity of Jammu and Kashmir, on
49
contract basis or by virtue of their deputa-
tion to such posts or offices from other
services in the State. unless otherwise or-
dered by the Chancellor 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 en-
tered into such agreement of service by reason of the com-
pulsive force of Statute 2 though in fact such agreement of
service had not been executed by them, perhaps due to inad-
vertence, 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 and conditions on which teachers mentioned in
Schedule I were continued in service of the University of
Jammu and clause 9(ii) of that Schedule read as follows:
"The Vice-Chancellor may when he deems
it necessary suspend the teacher on grounds of
misconduct, insubordination, inefficiency or
unsatisfactory performance of duty, when he
suspends the teacher he shall report it to the
university Council/Syndicate at the next
meeting."
The respondent and some other teachers were of the view that
the terms and conditions set out in Schedule II effected a
change in their conditions of service to their prejudice and
hence they made a representation to the Chancellor and other
authorities of the University of Jammu. It does not appear
from the record as to what happened to this representation
but presumably it was rejected.
Now we come to the events which formed the immediate
cause for the predicament of the respondent. It appears
that certain complaints were received by the Vice-Chancel-
lor against the conduct of the respondent and the Vice-
Chancellor took the view that these complaints were of a
serious character and needed to be enquired into and pending
such enquiry, it was not desirable that the respondent
should be allowed to continue to work as a lecturer. The
ViceChancellor accordingly passed an order dated 21st May,
1970 directing that the respondent be placed under suspen-
sion with immediate effect. This order was purported to be
passed by the Vice-Chancellor in exercise of the powers
vested in him under clause 9(ii) of Schedule II of the Order
dated 24th December, 1969 and section 13 (4) of the Act of
1969. It may be convenient at this stage, before we proceed
50
further, to refer to section 13(4), since considerable
argument before us turned upon it Section 13 deals with the
powers and duties of the Vice-Chancellor and sub-section
(4) of that section reads as follows:
"(4) The Vice-Chancellor may take
action as he deems necessary in any emergency
which, in his opinion, calls for immediate
action. He shall in such a ease and as soon
as may be thereafter, report his action to the
officer, authority or other body of the Uni-
versity concerned who or which would ordinari-
ly have dealt with the matter."
Sub-section (6) of section 13 is also material
and it is in the following terms:
"(6 ) The Vice-Chancellor shall give
effect to the orders 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, Stat-
utes 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 ViceChancellor 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 di-
recting 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 matter and submit its finding to the
Syndicate. The Registrar of the University thereafter
passed ,an order dated 6th June, 1970 declaring that, during
the period of suspension, the respondent would not be enti-
tled to get full salary but he would be paid only subsist-
ence allowance at an amount equal to half pay and half
dearness allowance in accordance with the usual practice
followed by the University. It may be pointed out that with
effect from 21st May, 1971, that is after the expiry of a
period of one year from the date of suspension, the subsist-
ence allowance payable’ to the respondent was raised to 75%
of the pay and dearness allowance. A charge sheet contain-
ing twelve charges was then given to the respondent and he
was required to submit his explanation. The respondent gave
his explanation to the charges leveled against him and while
doing so, he also objected to the constitution of the
Committee which was appointed to enquire into the charges.
In consequence of his objection, the constitution of the
committee was changed and the Vice--Chancellor was kept out
of it. The enquiry by the Committee
51
commenced on 12th March, 19:71 and it went on for some time,
but before it could be completed, the respondent filed a
writ petition in the High Court of Jammu & Kashmir challeng-
ing the validity of the Order dated 24th December, 1969, the
Order dated 6th June, 1970 in regard to payment of subsist-
ence allowance and also impugning the legality of the
enquiry proceedings. There were various grounds taken by
the respondent in the writ petition but it is not necessary
to refer to them in detail having regard to the course which
the appeal has taken before us. The writ petition was heard
by a Single Judge of the High Court and by a judgment dated
28th April, 1972 the learned Judge dismissed the writ
petition. The respondent there upon preferred a Letters
Patent appeal in the High Court. During the pendency of
the appeal, the departmental enquiry which was started
against the respondent. was completed and the committee made
a report absolving the respondent of all the charges except
charges Nos. 1 and 12 of which the respondent was found
guilty. The syndicate, after considering the report of the
committee, resolved to issue a notice to the respondent to
show cause why "the punishment for termination of his
services from the University be not imposed on him" on the
ground of charges Nos. 1 and 12. Pursuant to this resolu-
tion, 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 subse-
quent 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 find-
ings on the two impugned orders and also in consequence of
our observations on the legal aspect of the show cause
notice issued to the appellant to terminate his service, the
same also deserves to be quashed." The Division Bench
accordingly allowed the appeal, set aside the judgment of
the learned Single Judge and issued a writ of certiorari
quashing the Order dated 24th December, 1969 and the Order
of suspension dated 21st May, 1970 as also the show cause
notice issued to the respondent and directed the reinstate-
ment of the respondent. The University and the Vice-Chan-
cellor thereupon preferred the present appeal with special
leave obtained from this Court.
The appeal was heard by this Court for some time on the
points which were decided against the University and the
Vice-Chancellor and certain further points were also raised
by the respondent in support of the order made by the
Division Bench of the High Court.
52
But it is not necessary to examine the arguments advanced on
behalf of the parties on these various points, since before
the hearing of the appeal could be concluded, a partial
settlement was arrived at between the University and the
Vice-Chancellor on the one hand and the respondent on the
other. It was agreed between the parties as a result of
this settlement that the University should drop the disci-
plinary proceedings action against the respondent and that
the respondent should be allowed to join service within
fourteen days from the date of the order to be made by this
Court and upon his joining, his pay should be fixed as
lecturer taking in view the increments which he would have
earned but for the suspension. It was also declared in the
settlement that there shall be no stigma whatsoever attached
to the respondent and so far as the personal allegations
made by him against the University authorities we;re con-
cerned, they would stand withdrawn by him. The settlement
also provided that the respondent should be given benefit of
continuity of service and if the validity of the Order of
suspension was ultimately upheld by this Court and it was
held that the respondent was not legally entitled to any
thing more than the subsistence allowance actually paid to
him, the matter would be left to the Chancellor to determine
in his sole and. absolute discretion as to whether any
additional amount at all, and if so, what amount, may be
paid to the respondent for the period of suspension ex-
gratia 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 submis-
sions 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 inoper-
ative as it was in conflict with the provisions of section
52, subsection (1) of the Act of 1969. The argument of the
respondent was that immediately before the commencement of
the Act of 1969, he did not hold or discharge the duties of
any post or office in connection with the affairs of the
University on contract basis, nor was he on deputation from
any other service of the State of Jammu & Kashmir and he
was, therefore, not covered by section 52, sub-sections
(4) under which the Order dated 24th December, 1969 was
purported to be made, but his case was governed by section
52, subsection (1) which ensured him continuity in service
on the same terms and conditions as before and hence the
order dated 24th December, 1969 altering his terms and
conditions as set out in
53
Schedule II was invalid. This argument would have required
us to consider whether the employment or the respondent
under the University of Jammu & Kashmir immediately prior to
the commencement of the Act or 1967 was on contract basis,
because the provision in regard to deputation being
inapplicable, it is only if the employment of the respondent
was on contract basis that the Order dated 24th December,
1969 could be justified under section 52, sub-section (4).
But we shall, for the purpose of the present appeal, proceed
on the assumption that the case of the respondent was gov-
erned by subsection (1) and not sub-section (4) of section
52 and the order dated 24th December, 1969 in so far as it
determined any different terms and conditions for the re-
spondent was not valid, since we find that, in the view
which is being taken by us, it is not necessary to examine
this question. Undoubtedly, the effect of tins assumption
would be to put clause (9) (ii) of Schedule II to the order
dated 24th December, 1969 out of the way of the respondent
and it would not be available to the University and the
Vice-Chancellor m support of the Order of suspension. But
even so, we think the Vice-Chancellor had power to make the
Order of suspension and he was within his authority in doing
so.
We have already pointed out that by reason of Statute 2
read with clause (6) of the Form of Agreement annexed to the
Statutes made under the Act of 1965, the respondent was
bound by any changes which might be made in the Statutes
from time to time and no change made in the Statutes was
to be regarded as having adversely affected the respondent.
Now, the Statutes made under the Act of 196.5 continued to
be applicable to the University by reason of section 51, but
section 48, sub-section (2) provided for making of modifica-
tions, 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, obvi-
ously, 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 suspen-
sion made against the respondent would be within the au-
thority of the ViceChancellor. The respondent, there-
fore, assailed the validity of Statute 24(ii) on the
ground that it was not necessary for the purpose of bringing
the Statutes m conformity with the provisions of the Act of
1969 and was hence not within the terms of section 48,
subsection (2). Turning to the language of section 48, sub
section (2) it is clear that the power conferred on the
Vice-Chancellor under
54
that provision to approve modifications in the’ Statutes is
a power which can be exercised only where the modifications
are necessary for bringing the Statutes in conformity with
the provisions of the Act of ’1969, and if it is found that
any modifications purported to be approved by the Chancel-
lor are plainly unnecessary from the point of view of bring-
ing the Statutes in conformity with the provisions of the
Act of 1969’, it would be outside the power of the Chancel-
lor to approve them. The Chancellor cannot say that it is
for him to decide in his subjective opinion whether the
modifications proposed to be made are necessary for bringing
the Statutes in conformity-with the Act of 1969 and that his
subjective opinion is immune from scrutiny in a court of
law. Of course, if the view taken by the Chancellor is a
reasonably possible view, the Court would not interfere with
the Order made by him approving the modifications, but if
what has been done by him is plainly and egregiously wrong,
the Court would certainly interfere on the ground that the
order made by the Chancellor is beyond the power conferred
on him by section 48, sub-section(2). The question which,
therefore, arises for consideration is whet.her Statute
24(ii,) could reasonably be said to be necessary for bring-
ing the Statutes in conformity with the provisions of the
Act of 1969.
We may first refer to section 13, sub-section (4) of the
Act of 1969 which confers power on the Vice-Chancellor to
take such action as he deems necessary in any emergency
which in his opinion calls for immediate action. A similar
provision was also made in section 13, sub-section (4) of
the Act of 1965. But the Act of 1969 introduced a new
provision in sub-section (6) of section 13 to the effect
that the Vice-Chancellor shall be responsible for the disci-
pline of the University in accordance with the Act, Statutes
and Regulations. The Vice-Chancellor was, thus, entrusted
under sub-section (6) of section 13 with the task of main-
taining 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 main-
taining discipline, provided of course such action was in
accordance with the Act of 1969’ and the Statutes and Regu-
lations. 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-Chancel-
lor to effectively discharge the responsibility of maintain-
ing 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 sub-
section (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 any provision of the Act. But we do not find anything
in the Act of 1969 which militates against vesting of power
in the ViceChancellor to order interim suspension of a
teacher and hence Statute 24(ii) must be held to be a Stat-
ute validly approved by the Chancellor
55
within his authority under section 48, sub-section (2). The
view taken by the Chancellor that Statute 24(ii) was neces-
sary for bringing the Statutes in conformity with sub-sec-
tion (6) of ’section 13 can not in any event be said to be
so plainly erroneous that the Court would strike down Stat-
ute 24(ii) as invalid. Now, if Statute 24(ii) is valid,
there can be no doubt that the respondent would be bound by
it and in that event, the order of suspension made by the
ViceChancellor would be clearly within the power conferred
on him by that Statute. It is true that the Order of sus-
pension did not recite StatUte 24(ii) as the source of power
under which it was made, but it is now well settled, as a
result of several decisions of this Court, that when an
authority makes an order which is otherwise within .its
competence, it cannot fail merely because it purports to be
made under a wrong provision of law, if it can be shown to
be within its powers under any other provision a wrong label
cannot vitiate an order which is otherwise within the power
of the authority to make, Vide Hukamchand Mills Ltd. v.
State of Madhya Pradesh(1) and P. Balakotaiah v. Union of
India.(2)
We may also point out that the Order of suspension was,
in any event, justified by the provision in section 13,
sub-section (4). The Order of suspension, in fact, recited
that it was made in exercise of the power conferred under
section 13, sub-section (4). Sub-section (4) of section 13
is general in terms and provides that the ViceChancellor
shall be entitled to. take such action as he deems necessary
in any emergency which in his opinion calls for. immediate
action. It does not talk specifically of an order of interim
suspension of a teacher but the width and amplitude of the
language of the provision would clearly include action by
way of interim suspension of a teacher,’ when there is in
the opinion of the Vice-Chancellor an emergency calling for
immediate action. The respondent contended that the power
to order interim suspension is a quasi judicial power and it
would not be comprehended within the language of sub-section
(4) of section 13. But this contention is clearly falla-
cious 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
ViceChancellor 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, sub-
section (4) was wanting and the order of suspension could
not be justified under that provision.
(1) A.I.R. 1964 S.C. 1329.
(2) [1958] S.C.R. 1052.
5--240SCI/77
56
But this contention cannot be entertained by us since it has
not been taken as a ground of challenge in the writ peti-
tion. Whether or not there was ’an emergency requiring
immediate action on the part of the Vice-Chancellor .is
entirely a question of fact and if the respondent wanted to
contest the validity of the exercise of power by the Vice-
Chancellor under section 13, sub-section (4) in making the
order of suspension, he should have pleaded in the writ
petition that the order of suspension was outside the power
conferred under section 13, sub-section (4) as there was no
emergency. The respondent was aware from the recital con-
tained in the order of suspension that it was made by the
Vice-Chancellor in exercise of the power conferred under
section 13, sub-section (4) and, therefore, if the respond-
ent wanted to challenge the exercise of this power on. the
ground that there was no emergency justifying its exercise,
he should have made an averment to that effect in the writ
petition. If such averment had been made in the writ peti-
tion, the University and the Vice-Chancellor would have had
an opportunity of meeting it in the affidavit in reply filed
by them, but no such averment having been made in the writ
petition, the University and the Vice-Chancellor were not
called upon to meet it. Hence, we cannot permit the re-
spondent to challenge the validity of the order of suspen-
sion on the ground that there was no emergency attracting
the applicability of section 13, sub-section (4). The order
of suspension made by the Vice-Chancellor was plainly and
indubitably an order which the Vice-Chancellor had power
to make under section 13, sub-section (4). It may be noted
that immediately after making the order of suspension the
ViceChancellor placed it before the Syndicate at its next
meeting as required by the second part of section 13, sub-
section (4) and the Syndicate approved of the action taken
by the Vice-Chancellor by rejecting the representation of
the respondent and recording the fact of the making of the
order of suspension.
We may also refer to one other contention urged on behalf
of the respondent and that was that by reason of section 52,
sub-section (1) the respondent was entitled to continue in
service of the University on the same terms and conditions
as regulated his service before the commencement of the Act
of 1969 and in view of the provide to sub-section (2) of
section 52 the conditions of 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, sub-
section (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 provi-
sions of sub-section (2)" employed in subsection (1) of
section 52 were intended merely’to clarify that a
57
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
any way derogating from the power of the Vice-Chancellor to
make an allocation of the teacher under section 52, sub-
section (2). The proviso to sub-section (2)imposed a limi-
tation on the power of the Chancellor to make an allocation
by providing that in making such allocation the conditions
of service of the employee shall not be varied to his disad-
vantage and it could not be construed. as a substantive
provision adding a requirement in sub-section (1 ) that even
though the terms and conditions of service may permit alter-
ation to the disadvantage of an employee, such alteration
shall be inhibited. We must, therefore, consider the impact
of sub-section (1) of section 52 unaffected by the provision
to sub-section (2). Now, it is obvious that even if the
respondent was entitled to continue in service on the same
terms and conditions as before by reason of sub-section (1)
of section 52, these very terms and conditions provided that
he would be bound by any changes which might be made in the
Statutes from time to time Vide Statute 2 read with clause
(6) of the Form of the Agreement annexed to the Statutes
made under the Act of 1965. If, therefore, any changes
were made in the terms and conditions of service of the
respondent by Statutes validly made under, the Act of 1969,
the respondent could not complain of any infraction of the
provision of sub-section (1) of section 52. Statute 24(ii)
was, as already pointed out above, a Statute validly made
under section 48, sub-section (2) and hence the Vice-Chan-
cellor was entitled to make the order of suspension against
the respondent in exercise of the power conferred by that
Statute. Section 13, sub-section (4) of the Act of 1969
could also be availed of by the Vice-Chancellor for sustain-
ing the order of suspension, since it conferred the same
power on the Vice-Chancellor as section 13, sub-section (4)
of the Act of 1965 and exercise of the power conferred by
it as against the respondent did not involve any violation
of sub-section ( 1 ) of section 52.
We are, therefore, of the view that the order of
suspension was a valid order made by the Vice-Chancellor in
exercise of the power conferred upon him under Statute
24(ii) as also section 13, sub-section (4) of the Act of
1969. Now, if the order of suspension was a valid order, it
suspended the contract between the respondent and the Uni-
versity and neither the respondent was 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 govern-
ing 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 (1):
(1) [1970] 3 S.C.R. 448.
58
"The general principle is that an em-
ployer 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. Ordi-
narily, therefore, the absence of such a power
either as an express term in the contract or
in the rules framed under some Statute would
mean that an employer would have no power to
suspend an employee of his and even if he does
so in the sense that he forbid the employee to
work, he will have to pay the employee’s 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 sus-
pending 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. It is equally well settled that
an order of interim suspension can be passed
against the employee while an enquiry is
pending into his conduct even though there is
no such term in the contract of employment 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. The
distinction between suspending the contract of
a service of a servant and suspending him from
performing the duties of his office on the
basis that the contract is subsisting is
important, The suspension in the latter case
is always an implied term in every contract of
service. When an employee is suspended in
this sense, it means that the employer merely
issues a direction to him that he should not
do the service required of him during a par-
ticular period. In other words, the employer
is regarded as issuing an order to the
employee which because the contract is sub-
sisting, the employee must obey."
It will, therefore, be seen that where there is power con-
ferred on the employer either by express term in contract or
by the rules governing the terms and conditions of service
to suspend an employee, the order of suspension has the
effect of temporarily suspending the relation of master and
servant with the consequence that .the employee is not bound
to render service and the employer is not bound to pay. In
such a case the employee would not be entitled to receive
any payment at all from the employer unless the contract of
employment or the rules governing the terms and conditions
of service provide for payment of some subsistance allow-
ance. Here, as we have held,
59
the Vice-Chancellor had the power to suspend the respondent
under Statute 24(ii,) or in any event under section 13,
sub-section (4) and hence the respondent could not claim
payment of his salary during the period of suspension. The
only’ payment which the respondent could claim to receive
from the University was subsistence allowance. if the rules
governing the terms and conditions of his service made such
a provision. The University stated that it had adopted as a
matter of practice the rules relating to Civil Servants of
the State of Jammu & Kashmir for the purpose of payment of
subsistence allowance to its employees and in fact the
University Council at its meeting held on 22nd February,
1971 formally accorded approval to this practice. The
respondent was, therefore, clearly not entitled to receive
from the University anything more than the subsistence
allowance actually paid to him, which, we are told, was paid
on the same basis as that prevailing under the rules relat-
ing to Civil Servants of the State of Jammu & Kashmir.
These were the reasons for which we made our order dated
17th December, 1976 upholding the validity of the order of
suspension dated 21st May, 1970 and holding that the
respondent was not entitled to anything more than the
subsistence allowance paid to him during the period of sus-
pension under the order of the Registrars dated 6th June,
1970.
P.B.R. Appeal allowed
60