NORTH BENGAL UNIVERSITY & ORS.versusDILIP KUMAR SARKAR

                         [2015] 9 S.C.R. 192


A              NORTH BENGAL UNIVERSITY & ORS.
                                  v.
                       DILIP KUMAR SARKAR
               (Civil Appeal Nos. 5702-5703 of 2015)
B
                           JULY24, 2015.
               [T. 5. THAKUR, R. K. AGRAWAL AND
                        R. BANUMATHI, JJ.]

c         North Bengal University Act, 1981 - s. 10(6) - Controller
    of Examination of University responsible for irregularities in
    University fund- Issuance of suspension order - Writ petition
    challenging suspension - Suspension order quashed by
    High Court since the Vice-Chancellor did not apply its mind
D   as to whether emergent situation arose for invocation of s.
     10(6) - Issuance of direction to the University to permit the
    Controller to resume his duty - Said order disposed of by
    the Division Bench - On appeal, held: High Court was wrong
    on both the counts - Question that fell for determination
E   before the Single Judge was whether the order of suspension
    issued by the Vice-Chancellor was legally valid - In appeal,
    the question that fell for consideration was whether the Single
    Judge was right in holding that the Vice-Chancellor's order
    was bad for the reason indicated by Single Judge - Division
F   Bench did not advert to that question at all, instead opined
    that the appeal had become infructuous and was academic
    - Matter was not infructuous or academic - Further, the
    Division Bench made arrangement in substitution of the order
G   of Single Judge, issued conditional and contingent directions
    for the Chancellor, the Executive Council and the Vice-
    Chancellor of the University to follow - Division Bench
    appears to be making an interim arrangement subject to the
    final outcome of the writ petition which was heard by Single
H   Judge - High Court overlooked the fact that the order under
                                 192
 NORTH BENGAL UNIVERSITY & ORS. v. DILIP KUMAR                   193
                  SARKAR

challenge was a final order by Single Judge - Order betrays A
 the ignorance of the Division Bench about the true factual
position of the case - Order of the Division Bench is tOtal/y
dissatisfactory - Failure of the Division Bench to adopt a
judicial approach in the matter is much too evident to be
ignored, resulting in multiplicity of proceedings apart from B
delay and failure of justice - Matter remitted back to High
Court - Judicial deprecation.

    CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
5702-5703 of 2015                                                C

     From the Judgment and Order dated 25.08.2011 of the
High Court of Calcutta in AST No. 182 of2011 with C.O.T. No.
14of2011
                                                                 D
      Krishnan Venugopal, Kuna! Chatterji, Maitrayee Banerjee
for the Appellants.

      Ranjan Mukherjee, A.K. Roy and Snehasjsh Mukherjee
for the Respondent.
                                                                 E
     The Judgment of the Court was delivered by

     T. S. THAKUR, J. 1.     Leave granted.

     2. These appeals arise out of an order dated 25th August,
2011, passed by a Division Bench of the High Court of Calcutta   F
whereby AST 182 of 2011 and COT 14 of 2011 filed by the
appellant-University have been disposed of with certain
directions.

      3. The factual matrix in which the disputes touching the G
validity of certain disciplinary proceedings initiated against the
respondent arose has been elaborately set out in the order
passed by the Single Judge of the High Court and that passed
by the Division Bench in appeal. Recapitulation of the entire H
194       SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A factual backdrop would, therefore be of little use. All that we
  need mention is that the respondent-Dilip Kumar Sarkar was
  working as Controller of Examinations, University of North
  Bengal. A special audit/investigation into certain irregularities
  appears to have been conducted and a report drawn-up which
B suggested that the respondent was responsible for the said
  irregularities involving huge amounts spent out of the University
  fund. The report quantified the financial loss caused to the
  University at a sum of Rs.1,04,44,716/-.

C      4. In February, 2009 the University appears to have
  engaged the services of M/s. Mitra Roy & Datta, Chartered
  Accountants, to undertake a fact finding exercise into the
  irregularities afore-mentioned. The report submitted by the
  said Chartered Accountants also suggested that irregularities
D had, indeed, been committed and that the University had
  suffered a financial loss. The loss was pegged at
  Rs.81,58,059/- by the auditors apart from several other
  irregularities refE'.rred to in their report.

E       5. In August, 2009 the Executive Council of the appellant-
  University appears to have appointed Mr. Arun Kumar Das,
  ICAS (Retired) to investigate, in depth, matters touching the
  expenses incurred out of University funds. ML Das also
  submitted a report indicating that the respondent had
F suppressed information and released amounts without the
  approval of the competent authority. He was, therefore, held
  responsible for the excess payments made and consequential
  loss suffered by the University. It was also alleged that
  respondent suppressed certain information in relation to
G instructions allegedly issued by the former Vice-Chancellor to
  the finance department for having an internal audit conducted.

        6. On the basis of the above reports, the Vice-Chancellor
  of the appellant-University appears to have sought the opinion
H of the learned Advocate General. The reports and the opinion
 NORTH BENGAL UNIVERSITY &ORS. v. DILIP KUMAR                   195
           SARKAR [T. S. THAKUR, J.]

of the learned Advocate General were then placed for A
consideration in the 2541h meeting of the Executive Council of
University of North Bengal on 81h March, 2010. The Vice-
Chancellor of the University also, on the basis of the reports
and the documentary evidence available with him, lodged an
FIR before the local Matigara Police Station for initiating B
appropriate criminal action against those responsible. At the
same time and in contemplation of disciplinary proceedings
against respondent-Dilip Kumar Sarkar, the Vice-Chancellor
issued an order placing the former under s.uspension.
                                                                c
     7. Aggrieved by the order of suspension issued against
him, the respondent filed Writ Petition No.7892(W) of 2010
which was heard and allowed by a Single Bench of the High
Court of Calcutta by his judgment and order dated 2nd May,
2011. The High Court took the view that the Vice-Chancellor     D
had not applied his mind to the question whether an emergent
situation had indeed arisen which called for invocation of
Section 10(6) of the North Bengal University Act, 1981. The
High Court observed:
                                                                E
  "......... In this case, in the order impugned, there is no
  indication that the respondent no. 3 had examined as
  to whether there was a situation of urgent or emergent
  nature before issuing the order of suspension ... ...... ".
                                                                F
     8. The High Court, accordingly, quashed the order of
suspension and directed the University to permit the
respondent to resume his duty with a further direction that the
entire period during which the respondent had been forced to
stay on leave shall be treated to be on duty. The High Court G
made it clear that the order shall not prevent the Executive
Council from re-examining the matter and taking an
appropriate decision having regard to all relevant factors nor
would the same prevent the Vice-Chancellor from exercising
his powers under Section 10(6) of the North Bengal University H
196          SUPREME COURT REPORTS                     [2015] 9 S.C.R.


A     Acf,lf; in his opinion, there are grounds which give rise to an
      urgency warranting exercise of his emergency powers. ·

             9. The qrder passed by the Single Judge was then
      assailed by the appellant-University in AST 182 of 2011 and
B     COT 14 of2011 which came to be disposed of by the Division
      Bench of the High Court in terms of the order impugned before
      us. We have gone through the order under challenge over and
      over again with a view to understand the issues that fell for
      consideration and the view which the High Court has taken on
C     the same. We regret to say that our efforts have remained in
      vain. The order passed by the High Court does not formulate
      any question for determination leave alone examine the rival
      submissions made on in regard to the same or articulate the
      reasoning for accepting or rejecting the same. The order is to
D     say the least confused not only as to the points that were raised
      for consideration but also as to the determination of the said
      points by the court. It starts with the observation that the 'matter
      has become an academic one, if not infructuous,' and yet
      makes the order subject to any decision that may be rendered
E     by the learned Trial Judge, who, according to the Division
      Bench, had heard and reserved the matter for pronouncement
      of orders. The High Court was, in our opinion, wrong on both
      counts. We say so because the matter was not infructuous or
F     academic as observed by the High Court. The question that
      fell for determination was whether the order of suspension
      issued by the Vice-Chancellor was legally valid having regard
      to the fact that according to the Single Judge the order did not
      record the satisfaction of the Vice-Chancellor as to the
G     existence of an emergent situation justifying resort to the
      powers vested in the Vice-Chancellor under Section 10(6) of
      the North Bengal University Act, 1981. Existence of an
      emergent situation and satisfaction of the Vice-Chancellor
      regarding the same were held by the Single Judge to be
H     essential pre-requisites for invocation of said provision. In the
 NORTH BENGAL UNIVERSITY & ORS. v. DILIP KUMAR                     197
           SARKAR [T. S. THAKUR, J.]

appeal, preferred against that order, the question that fell for   A
consideration was whether the Single Judge was right in
holding that the Vice-Chancellor's order was bad for the reason
indicated by the Single Judge. The DivisionBench·has not
adverted to that question at all. The Division Bench instead
opined that the appeal had become infructuous and was              B
academic.

      10. Secondly, because the Division Bench of the High
Court appears to have made an arrangement in substitution
of the order passed by the Single Judge, it has issued             C
conditional and contingent directions for the worthy Chancellor,
the Executive Council and the Vice-Chancellor of the appellant
University to follow. This is evident from the operative portion
of the impugned order which reads as under.
                                                                   D
  "......... Accordingly, we make it clear that in the event
  executive council is functioning lawfully as on today,
  the decision shall be taken on receipt of the enquiry
  report within a period of three weeks from the date of
  communication of this order. Such decision shall be              E
  taken in accordance with law and be communicated to
  the respondent forthwith. If the executive council is not
  functioning, then we request the Hon'ble Chancellor to
  see that executive council is allowed to function at least
  for this matter for taking decision. If for any reason such      F
  functioning of the executive council in the mind and
  decision of the Hon 'ble Chancellor is not possible, then
  we think emergent situation would arise within the
  meaning of Sectiori 10 of the said Act. In this situation
  only the Vice Chancellor is to take a decision on behalf         G
  of the executive council.

  We request the Hon'ble Chancellor to take decision with
  regard to the functioning of the executive council within
  fortnight. If Vice Chancellor is required to take action         H
198       SUPREME COURT REPORTS                  [2015] 9 S.C.R.


A     in absence of the executive council in terms of this
      order, then decision must be taken within fortnight from
      date of taking decision by the Hon'ble Chancellor and
      such decision shall be communicated to the writ
      petitioner/respondent forthwith. If adverse decision is
B     taken by the Vice Chancellor, the effect of the same
      shall not be given for a period of ten days from the date
      of receipt of taking such decision and it would be open
      for the writ petitioner/respondent, if advised, to place
      the entire matter before the Hon'ble trial Judge and seek
c     for appropriate interim relief upon notice to the
      University. Till such time· the interim arrangement
      made by this court, will continue andthis arrangement
      shall not be construed by the learned Judge to be any
      weightage in favour of either of the parties for taking
D
      independent decision in the wake ofpassing final order
      by the authority concerned. However, this order is
      subject to any decision which, might be rendered by
      the learned trial Judge who, we are told, has heard out
E     the matter and the judgment is awaiting.

      The appeal and the cross objection are disposed of."

       11. If the appeal was indeed infructuous, as observed by
  the High Court, we fail to understand the rationale behind its
F taking pains to make arrangements or to provide for different
  contingencies that may arise or issue directions that are in
  themselves vague to say the least. What is even more
  surprising is the fact that the Division Bench appears to be
  making an interim arrangement subject to the final outcome of
G the Writ Petition which, according to the Division Bench, has
  been heard by the Single Judge and reserved for
  pronouncement of orders. The High Court appears to have
  completely overlooked the fact that the order under challenge
H before it was a final order passed by the Single Judge and
 NORTH BENGAL UNIVERSITY & ORS. v. DILIP KUMAR                            199
           SARKAR [T. S. THAKUR, J.]

that there was no question of the Single Judge pronouncing A
any further orders, after the matter stood disposed of. The last
four lines of the order extracted above betray the ignorance of
the Division Bench about the true factual position of the case.
All told we are totally dissatisfied with the order of the Division
Bench for we feel that the failure of the Division Bench to adopt B
a judicial approach in the matter is much too evident to be
ignored, resulting in multiplicity of proceedings apart from delay
and failure of justice. We accordingly allow these appeals, set
aside the impugned order and remitthe matter back to the
High Court for hearing and disposal of AST No. 182 of 2011 C
and COT No. 14 of 2011 afresh. The parties shall appear
before the High Court on 141h August, 2015. No costs.

Nidhi Jain        Appeals allowed & matter remitted back to High Court.
                                                                          D