GHULAM 'MUSTAFA MUGHAL, J..-- This writ petition is directed under section 44 of the AJ&K Interim Constitution Act, 1974, whereby the notifications issued on Jan 13,1999, Jan 26,2000 and August 01, 2000 have been challenged.
2. The facts necessary for the disposal of this writ petition are that petitioner was in the service of AJ&K University. He was serving as Superintending Engineer in grade B-19. The petitioner claims that some posts of grade B-20 were available for promotion and the petitioner being qualified for the same applied to the Vice Chancellor for promotion. The Vice Chancellor instead of processing the case of the petitioner suspended him on 14.11.1998 from his service. Thereafter on November 21st 1998 Professor Dr. Abdur Raoof was appointed as Authorized Officer to proceed under University E&D rules 1988. It is stated that Authorized Officer without following the procedure as visualized by rule 6(ii) of the University E&D Rules 1988, issued a show cause notice to the petitioner on December 2, 1988 directing him to reply the same within a period of 14 days. The petitioner subsequently was dismissed on January 13, 1999. The petitioner filed a review petition before the Chancellor of AJ&K University. The Chancellor instead of deciding himself referred the same to syndicate who after hearing dismissed the review petition on January 26, 2000. The petitioner again challenged the order dated 26-1-2000 through review petition before the Chancellor on 26-5-2000, he formulated some points and referred the same to syndicate. The syndicate again on 1-8-2000 upheld the subsequent orders passed by the respondent No.1. The orders dated 13-1-1999, 26-1-2000 & 1-8- 2000 have been challenged through the instant writ.
3. The facts stated in the writ petition have been denied by the respondents by filing written statements. It is alleged that writ petition is liable to be dismissed on the ground of laches. It is further stated that a proper inquiry was conducted against the petitioner and, on proving the charge, competent authority has dismissed him from service, therefore, the order of dismissal supported by the cogent reasons by the authorities of the University cannot be substituted in writ jurisdiction. No violation of law or rules has been pointed out by the petitioner and similarly no allowance, for choosing a wrong forum, can be given to the petitioner. Therefore, dismissal of the writ petition has been requested.
4. Mr. Imdad Ali Malick, the learned counsel appearing form in light of the averments made in the written statement as well as comments filed by the respondents the petitioner vehemently contended that disciplinary proceedings were initiated on the basis of an order passed by the Vice Chancellor on November 21st 1998 under section 11 (3) of The University of Azad Jammu & Kashmir Act, 1985 (hereinafter shall be referred The University Act, 1985) and the same are without jurisdiction and outside the purview of sub section 3 of section 11 of the aforesaid Act. The .powers conferred on the Vice Chancellor through the aforesaid section are of emergent nature and no. such eventuality arises and even otherwise the Vice Chancellor was not competent to initiate the disciplinary proceedings against the petitioner. The learned Advocate further contended that admittedly the proceedings have been initiated under The University of Azad Jammu & Kashmir Employees (Efficiency and Discipline ) Statute, 1985. Under section 5 of the aforesaid statute, the mode of initiation of the proceedings has been provided. According to the learned counsel, authority competent to initiate the proceedings in case of the petitioner, was Syndicate, therefore, the very initiation of the proceedings was without jurisdiction. The learned Advocate contended that the review was filed before, the Chancellor who was duty-bound to decide the same but illegally entrusted the same to the Vice chancellor who referred the same to the Syndicate which action was alien to the scheme of the rules. According to the learned Counsel, decision of the Syndicate on the review petition is equally without jurisdiction and liable to be quashed.
5. Mr. Farooq Hussain Kashmiri, Advocate appearing for the respondents controverted the arguments of the learned counsel for the petitioner and stated at bar that the inquiry has been conducted against the petitioner in accordance with the relevant rules and after finding him guilty of misconduct. Legal punishment has been awarded to him. The learned counsel further stated that petitioner was bound to prefer an appeal before the Syndicate but he failed to do so, therefore, the review before the Chancellor was not competent. Even then, the review was treated as an appeal and was rightly decided by following the relevant procedure of the rules. The petitioner was provided an ample opportunity for hearing and the order is perfectly justified and in consonance with the record. According to the learned counsel, the Chancellor was not competent to issue any direction to the Syndicate, therefore, even subsequent action of the Syndicate 'cannot be disturbed on mere conjunctures and surmises.
6. I have heard the learned counsel for the parties and perused the record.
7. So far the first contention of the learned Advocate for the petitioner is concerned that the orders of suspension of the petitioner as well as for initiation of the disciplinary proceedings were issued on 14.11.1998 and November 21st 1998 respectively, by the Vice Chancellor in exercise of the powers conferred on him under Section 11 (3) of the University Act, 1985, but are without jurisdiction and coram non judice, has a force. For proper perception of the matter, it is useful to reproduce section 11(3 & 4) of the Act, which is as under:- (1)
(2)
(3) The Vice chancellor may, in an emergency, which in his opinion requires immediate action, take such action as he may consider necessary and shall, as soon thereafter as possible, report his action to the Authority or other body, which in the ordinary course would have dealt with the matter."
(4) The Vice Chancellor shall also have the power:-
(i) to create and fil! posts temporarily for ^ period exceeding six months;
(ii) to sanction all expenditure provided for in the approved budget, and to re-appropriate funds within the same major head of expenditure;
(iii) to sanction by re-appropriation an amount not exceeding fifteen thousand rupees for an unforeseen item not provided for in the budget, and report it to the syndicate at the next meeting. to appoint examiners for all examinations of the University after receiving panels of names from the relevant authorities;
(v) to make such arrangements for the scrutiny of papers, marks and results as he may consider necessary; to direct teachers, officers and other employees of the University to take up such assignments in connection with teaching, research, examination and administration and such other activities in the University, as he may consider necessary for the purpose of the University.
(vii) to appoint employees upto grade 16 in the National Pay Scales;
(viii) to delegate, subject to such conditions, if any, as may be prescribed, any of his powers under, this Act to an officer of other employees of the University; and
(ix) to exercise and perform such other powers and functions as may be prescribed.
A perusal of the afore-quoted provision of law reveals that the position of the Chancellor is that of an Principal Executive and Academic Officer of the University who has been made responsible to ensure that the provisions of the Act, Statute, Regulations and the Rules are faithfully 'followed. The Vice Chancellor has also been given a supervisory role and control over all the officers, teachers, employees and students of the University. Sub section 3 of section 11 of the University Act further empowers the Vice Chancellor in an emergency, which in his opinion requires immediate action, to take such action as he may consider necessary and shall, as soon thereafter as possible report his action to the Authority or other body which in ordinary course, would have been competent to take action in the matter. After considering the aforesaid provision of law, I am of the view that the Vice Chancellor was not competent to initiate the disciplinary proceedings on the basis of Section 11(3) of the University Act, 1985. Under The University of Azad Jammu and Kashmir Employees (Efficiency and Discipline) Statutes, 1988, the authority has been defined in section 2 c) as under:- "(c) "Competent Authority" means an officer or authority competent to appoint the accused."
Section 5 of the aforesaid rules postulates that if in the opinion of the competent authority, there are sufficient grounds for proceedings against the University Employees, it may direct the authorized officer to proceed against the said University Employee. It is, therefore, very clear that it is the prerogative of the competent authority to initiate the disciplinary proceedings and in case of the petitioner, admittedly the competent authority was Syndicate. The action taken by the Vice Chancellor has not been reported to the Syndicate immediately as required by law. The dismissal order issued on 13.1.1999 is also to the effect that the Vice Chancellor in exercise of, the powers vested in him under section 11(3) of the University Act, 1985, concurring with the recommendations of the Authorized officer, has dismissed the petitioner from the service of AJ&K University, which is without jurisdiction and against the mandatory provisions of the rules.
8. Similar proposition came up for consideration before a Division Bench of Lahore High Court in the case of Islamic University Bahawalpur, through Vice Chancellor v. Dr. Muhammad Khan Malik (PLD 1993 Lahore 141). The facts of the case were that the Vice Chancellor in exercise of the powers conferred in him under section 15(3) of the Bahawalpur University Act, 1975 suspended Dr. Muhammad Khan Malik, Dr. Fazal and Dr. Khatak and issued an order for disciplinary proceedings against the aforesaid Associate Professors under the provisions of islamia University Bahawalpur Employees Efficiency and Discipline Statues, 1976. For the aforesaid purpose, Dr. Muhammad Salim Ahmed, Din of the Faculty of Islamic Law of the University, was appointed as authorized officer. The powers in that case were also exercised by the Vice chancellor as conferred on him under section 15(3) of the Islamia University Bahawalpur Act (iv) of 1975. Initiation of the proceedings was challenged through separate constitutional petitions before the Lahore High Court and after survey of the case law, a Division Bench of the Lahore High Court came to the conclusion that Vice Chancellor was not competent to initiate the disciplinary proceedings in exercise of the above referred provision. It is useful to reproduce paragraphs 2C and 21 of the Judgment which are as under:- "20. Having dealt with section 15(4) clause (vi) we now take up subsection (3) of section 15 ibid. As already remarked grant of power under this section is for an emergent situation. Being the principal executive and academic officer of the University he is to run, regulate, manage and supervise the University. A host of problems might crop-up for his immediate decision. Some problem might be so urgent that he might have to exercise the authority of senate, syndicate, academic council and even of his superior authority, i.e. Chancellor and Pro-Chancellor. No Jacket formula can be prescribed by this Court except that this power is of wide amplitude. The condition for the exercise of power under section 15(3) is that he must examine facts which call for exercise of ordinary powers under this clause and secondly after taking action he must refer his action to the officer/authority of the other body which in ordinary course of business would have dealt with this situation within reasonable time for approval.20. It is not the case of any party that the Vice Chancellor had the initial authority to appoint, suspend, punish and remove teachers from service.
The power undisputedly, belongs to syndicate. The Vice Chancellor can take appropriate actions in exercise of his power under section 15(3) of the Act to meet sudden, unexpected happenings or unforeseen occurrences only doctrine of emergency. The action taken by the Vice Chancellor is tentative in nature -and is intended to control the sudden situation/exigency. He has to report the action to syndicate/competent authority for approval of his action . The syndicate might approve or disapprove the action. We have, therefore, no hesitation in concluding that the Vice Chancellor can take actions having connection with some urgent situation subject to the confirmation of syndicate. His action is, therefore, inchoate preliminary in nature till it is confirmed by the competent authority. If his action is disapproved, it looses its efficacy. We further find that the Vice Chancellor is obliged under the law to submit his actions to syndicate or approval within a reasonable time Applying these principles to the facts and circumstances of these cases noted above, it is clear that the first round the Vice Chancellor transferred all the teachers from their discipline to different posts. Dr. Malik was shifted to the Department of CHILDS while Dr. Fazal and Dr. Khatak were posted as O.S.Ds. Despite our research, we have not been able to find the posts of 0.S.Ds. in schedule or in any status or regulation made by the University. When the order of Vice Chancellor was struck down by this Court, he, in exercise of powers under section 15(3) of the act in conjunction with the order of delegation passed by Chancellor Committee in 1980 not only suspended Dr. Malik, Dr. Fazal and Dr, Khatak but also appointed as authorized officer to initiate proceedings under Islamia University Bahawalpur Employees Efficiency and Discipline Rules 1976. Pursuant to this, the authorized officer issued notice to these associate professors to show cause as to why the penalties as provided under rule 4 of the statute be not imposed upon them'. The authorized officer further constituted the inquiry committee under rule 6 of the statute. We are afraid, we are not able to endorse these actions as these are wholly beyond the powers of the Vice Chancellor under section 15(3) of the Act. These powers belong to syndicate under section 25 of the Act. It is the prerogative of syndicate to initiate proceedings when it finds that there are sufficient grounds for proceeding under Statute against delinquent officials. The Syndicate has further power to appoint Authorized Officer to proceed against delinquent employees. The mechanism of taking action to logical conclusion against delinquent official/employee/teacher is comprehensive and is built upon ,the rule ' that no body should be condemned unheard'. Such mechanism can have no nexus with the doctrine of emergent power and cannot be resorted to by the Vice-Chancellor. It is true that the Vice- Chancellor can suspend the teachers of University if he forms opinion that continuous presence of these teachers in their discipline is harmful to the atmosphere of such discipline,and University and submit his action to the Approving Authority for approval and for initiation of proceedings against the said teachers under Statute, 1976."
An identical view had been taken in case of Dr. Ghu/am Mustafa Chaudhry v. Dr. Muhammad Ashfaq Khan, Vice Chancellor, Bahaodin Zakria University Multan, 2000-PLC(CS)385. The Hon'ble Judges of Lahore High Court in case of University of the Punjab v. Rehrnatullah (PLD-1982-Lah.-729) were called upon to interpret the similar provision of University of the Punjab Act, (IX of 1973). After say of case law, was observed as under:- "We, however, do not feel persuaded to agree with the view of the learned Single Judge that under Section 15(3) of the Act, the Vice-Chancellor, in an emergency can replace the approving body but in no case is empowered to act both for the proposing and the approving authorities. Such a distinction cannot be made on the basis of the wording of sub-section (3) of Section 15 of the Act, as under this provision, the Vice-Chancellor has been conferred the power to take "such action" as he may consider necessary in a given emergency and thereafter to report his action for. approval of the officer, authority or body which in the ordinary course would have originally dealt with the matter. It is apparent that "such action" does not contemplate taking of action on behalf of such officer, authority or body which under the Act have only power to accord approval. The power to take ' such action' has been conferred on the Vice-Chancellor to act in order to achieve the scheme and the purposes of the Act for or on behalf of the officer, authority or the body who or which due to unavoidable situation is not available or cannot for the time being act and taking of action immediate. It is necessary and cannot be postponed till the time that such officer, authority or body is able to act. Thus vice-Chancellor has been given the power to perform the prescribed act of the officer, authority or body whatever it. may be including the act of preparing the regulations or initiation of a matter. The power to take action is however dependent or the existence of emergency which in his opinion requires immediate action. Thus emergency as a matter of fact and not opinion has to be in existence and then the question is to be asked whether immediate action is required to be taken or not. It is here where "opinion making" of the Vice- Chancellor is involved. Learned counsel for the appellants .in , this respect did not claim complete immunity from judicial review of the actions of the Vice-Chancellor as was urged before the learned Single Judge. Instead he argued that whether subjective' or objective test is applied, the opinion formed in a given situation by the Vice-Chancellor cannot be substituted by the opinion that may be formed by this Court, once it is shown that opinion as to existence of emergency and the necessity of the action taken was formed by applying mind reasonably and in good faith. We need not go into this question in detail as the learned Single Judge has discussed the question in depth and we respectfully agree with his view. We may however, quote here .the words of Lord Denning from the case Secretary of State v. Aslef (1) as follows:- This brings me to the important question: what is the effect of the words ' If it appears to the Secretary of Stated'? This, in my opinion does not mean that the Minister's decision is put beyond challenge. The scope available to the challenger depends very much on the subject matter with which the Minister is dealing. In this case I would think that, if the Minister does not act in good faith, or if he acts on extraneous considerations which ought not to influence him, or if he pliantly misdirects himself in fact or in law, it may well be that a Court would interfere; but when he honestly takes a view of the facts is not to be set aside simply because thereafter someone thinks that his view was wrong."
In the instant case no reason or basis existed to act for the Academic Council and the Regulations were thus framed by the Vice-Chancellor incompetently and in disregard of the provision of the law, the faithful observance of which was one of his bounden duty. It was not a case of bad faith, in fact even the respondents have not alleged so but a case of defeating the law itself."
The proposition has also been considered by my learned brother Mr. Justice Muhammad Reaz Akhtar Chaudhry, J. in Faisal Shafique's case (PLJ 1998-H.C-AJK-38). It is useful to reproduce the relevant observation of my learned brother which is to the following effect:- "10. It is quite amazing that the Vice Chancellor created the seat in anticipation of the approval of the Academic Council and Syndicate. No doubt, that Section 11(3) of the University Act, confers power upon the Vice Chancellor, but these powers could only be exercised in emergency cases. For comprehending it I would like to reproduce the Section -111(3), which is as under:- Section 11(3), The vice Chancellor may, in an emergency which in his opinion requires immediate action, take such action as he may consider necessary and shall, as soon thereafter as possible, report his action to the authority or other both which in the ordinary course would have dealt with the matter".
11. Now the question arises that what was emergency in this case? The learned counsel for the University was confronted to explain, that what was the emergency, but he could not afford any reasonable explanation.
12. Under the aforesaid provision, the Vice-Chancellor can take an action in emergency and report it to the authority or the body' who in ordinary course has to dealt with the matter. Now the question arises, that what does the word emergency means?
Word emergency is not a term of art. Emergency is a state of affairs causing apprehension of unforeseen danger. The word emergency is defined in the Oxford Dictionary (a) juncture, that arises or corps up, a sudden occasion (b) the sudden or un-expected occurrence of State of things. Webster defines it as unforeseen combination of circumstances which calls for immediate action. It is defined as unforeseen combination of circumstance, which calls for immediate action.
It is also called crisis. This view finds support from PLD-1979-BJ17.
13. Now that question emerges, that what sought of combination of unforeseen circumstances calling for immediate action was involved in this case, which prompted the Vice Chancellor to create one set in anticipation of the approval of Academic Council and Syndicate. The perusal of the record shows, that there was no such emergency and the Vice Chancellor created the seat because it was directed by the Chancellor. Perhaps according to him, to direction of the Chancellor was also an emergency.
Now another question perturbs my mind, that if this action of vice Chancellor is not approved from the Academic Council and the Syndicate, then what will be consequence of it. I feel, that the Syndicate and the Academic Council, while giving the approval will also consider, whether there was any justification for creating special seat. I hope, that they will not simply 9. After perusing the record and case law referred.
14. bow before the direction of the Chancellor. They will consider the pros and cons of the creation of such special seat. It is observed, that the case of the non-petitioner No. 4 was not of emergency nature where the Vice Chancellor would have exercised the powers conferred upon him under Section 11(3)." hereinabove, it is clear that the order of suspension dated 14-1 1 - 1998 and the subsequent appointment of the authorized officer on 21-11-1998 have not been reported to the authority (Syndicate). Similarly the order dated 13-1-1999 is also not been approved by the Syndicate. The order itself is self-explanatory which reveals that the Vice Chancellor of the Azad Jammu and Kashmir University in exercise of powers conferred on him under subsection (2) of Section 11 has removed the petitioner from service without formal approval of the Syndicate. I have gone through. the relevant file from which it transpired that the review addressed to the Chancellor as per his direction was placed before the Syndicate and decided that dismissal has been upheld. In my view the subsequent ratification does not validate a void abinitio order. 'After perusing the written statement as well as the record and proceedings conducted by the authorized officer, I am unable, to hold that there was any emergency in the case in hand. It is elementary that if a mandatory condition for the exercise of jurisdiction by judicial or quasi-judicial authority is not fulfilled, the entire proceedings which followed, become illegal and suffer from inherent defect of jurisdiction.
Any order, passed in continuation of these proceedings equally suffer from illegality and are without jurisdiction. Respectfully following the Division Bench judgment of Lahore High Court, referred hereinabove, I accept the writ petition and recalls the orders dated 14-11-1998, 21-11-1998 and 13-1999. It is declared that the aforesaid orders have been passed without lawful authority and jurisdictional competency. It may be observed that charges against the petitioner are serious in nature. As the proper procedure have not been followed, therefore, the petitioner cannot be exonerated without proper inquiry by the competent authority in the prescribed manner.
Respondents would-be free to hold a proper inquiry in accordance with law.
10. In view of the aforesaid conclusion, the deliberation, on the other arguments of the learned Advocates for the parties becomes academic. The writ petition is accepted in the manner indicated above.