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CASE NO.: Appeal (civil)  4147 of 2003

PETITIONER: V.C., Banaras Hindu University & Ors.

RESPONDENT: Shrikant

DATE OF JUDGMENT: 12/05/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: JUDGMENT

With Civil Appeal No.248 of 2004   

S.B. Sinha, J.

       Banaras Hindu University was constituted under the Banaras  Hindu University Act No. XVI of 1915. (’the Act’).  The Act contains  constitution of various bodies functioning thereunder. Section 10 of the  Act, inter alia, provides for constitution of an Executive Council as an  executive body to be in-charge of the management and administration  of  the revenue and property of the University and conduct of all  administrative affairs thereof, not otherwise provided for.  Section 17 of the Act lays down the mode and manner in which  the Statutes of the University are to be framed subject to the provisions of  the Act which includes all appointments, powers, duties and affairs of the  University.  Section 18 of the Act provides for ordinance making power in  respect of the matters enumerated thereunder, which would be subject to  the provisions of Section under the Statute.

       Dr. Shrikant, the Respondent herein, was appointed as Lecturer in  Ophthalmology, Institute of Medical Sciences, Banaras Hindu University,  Varanasi.  His wife was also employed in the said University. She applied  for and was awarded a Commonwealth Fellowship in United Kingdom  with effect from 1.3.2000 to 28.2.2001. For this purpose, she made an  application for sanction of substantial leave.  The Respondent desired to  assist his wife in joining her fellowship as also to attend the Retina meeting  from 7th to 9th April, 2000 at Frankfurt, Germany as well as the Annual  Congress of Royal College of Ophthalmology at Harrowgate, United  Kingdom from 23-24th May, 2000.  He, therefore, applied for the following  categories of leave :

"(i)    Compensatoryleave \026 1.3.2000 to  30.4.2000          (i.e. Leave in lieu of duties performed on off-         days, holidays and vacations)

(ii)    Summer vacation leave - 1.5.2000 to  9.6.2000

(iii)   Compensatory leave \026 10.6.2000 to  30.6.2000 (i.e. Leave in lieu of duties  performed on off-days, holidays and  vacations)"

       Recommendations were made and forwarded on 21.2.2000 by the  Director of the Institute being the Head of the Department, who was the

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only competent authority under Ordinance No. 43 E of the Ordinance of  the University with the following endorsements:

"(i)    the information given above has been  checked from the document/records and  found correct.

(ii)    The examination, teaching and other allied  works of the department will not suffer and  leave is recommended."

       The purpose of the Respondent’s visit had been shown as  "Personal & Scientific". Charge was handed over by the Respondent to Dr.  O.P. Maurya. The application filed by the wife of the Respondent was  sanctioned on 28.2.2000.  Respondent and his wife left for United  Kingdom without express sanction of leave and without the permission of  the Vice Chancellor. The Respondent was asked to join his duties by the  Registrar of the University by a notice dated 24.3.2000 with a further  direction to show cause as to why action be not taken against him for his  alleged acts of misconduct. According to the Respondent, he received the  said letter only on or about 31.3.2000.  He replied thereto on 12.4.2000.  However, the University by an order dated 18.4.2000 asked the  Respondent to submit his reply again by 5.5.2000 failing which he would  be deemed to have abandoned his service with effect from 1.3.2000. By  another Office Memo dated 4.5.2000, the Respondent was asked to join his  duties by 17.5.2000, inter alia, on the premise that his earlier reply had not  been found to be satisfactory. It was stated therein that he would be  deemed to have abandoned his services with effect from 1.3.2000 if he  does not respond to the said notice, inter alia, on the premise that the  Respondent had failed to comply with the orders requiring him to report  back to his post, the service of the Respondent was terminated   by an order  dated 3.5.2000 passed by the Vice Chancellor of the University with effect  from 1.3.2000. An office memo was prepared in relation thereto on or  about 20/22.5.2000, which was received by the Respondent on 31.5.2000.  The Respondent sent a letter intimating the Registrar that on account of  peak summer season, Air reservation was not available before 19.6.2000  and he would report for duty by 21.6.2000. The Respondent came back to  India and submitted his joining report on 21.6.2000, which was not  accepted by the Registrar stating that he had abandoned his service from  1.3.2000 and the Institute had already taken a decision in that behalf.

        The Respondent filed a writ petition before the High Court of  Allahabad, which was disposed of by an order dated 14.7.2000 directing  the Vice Chancellor of the University to consider the said representation  sympathetically and for a period of six weeks the impugned order dated  20/22.5.2000 was stayed. Pursuant to and in furtherance of the said  direction, the Respondent filed a representation explaining the  circumstances under which he had to remain absent from his duties. He  was given a personal hearing. However, by an order dated 7.8.2000, the  Vice Chancellor refused to recall his order and opined that the Respondent  had gone abroad in a pre-planned manner.  A second writ petition was filed  by the Respondent assailing the said order dated 7.8.2000 and  20/22.5.2000.  An interim order was passed therein on 31.8.2000 by the  High Court granting a conditional stay of the order of termination directing  that the Respondent may be allowed to join his duties but he would not  claim any salary till the writ petition was decided. The said writ petition  was dismissed by an order dated 15.2.2001 on the premise that the  Respondent can avail an alternative remedy by making a representation to  the Executive Council of the University. The Respondent filed a  representation pursuant thereto before the Executive Council on 15.3.2001.  However, the matter was not placed before the Executive Council for a  long time and ultimately he filed a Contempt Petition.

       It is not in dispute that the Executive Council adopted a resolution

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on 8.1.2003 although the same was confirmed later on.

       By reason of the impugned judgment, the High Court allowed the  writ petition in part directing that the order of termination of the  Respondent was bad in law but denied him the back wages. Both the  parties are, thus, before us.

       Before we advert to the rival contentions raised before us, we may  notice some of the notifications issued by the Executive Council of the  University.  The Executive Council purported to be taking note of the  rampant practice by the faculty members availing leave including leave for  going abroad without prior sanction/permission of the competent authority,  in violation of the provisions of the leave rules and instructions issued  from time to time took a decision that the Head of the Department should  not allow the faculty Members to avail leave without prior sanction and  permission of the Vice Chancellor irrespective of the nature of leave  applied for (including vacations), failing which the same would be  considered as "misconduct" and action  shall be initiated as per rules.

       Yet again the Executive Council considered the question of taking  disciplinary action against the employees for having gone abroad without  the permission/sanctioned leave and for taking action against those who  have overstayed without the prior approval and without the prior  permission of the University. In order to curb the said practice, the  University decided that services of those employees, who overstayed  without prior permission for more than 45 days from the date of issue of  the notice by the University, would be "abandoned as per existing rules"  (sic for deemed to be abandoned).

       Mr. Dwivedi, learned counsel appearing on behalf of the Appellant  submitted that the University, having regard to the provisions contained in  Section 10 as also the Ordinance making power, could have passed an  execution instruction creating a legal fiction that any member of faculty  who wants to go abroad without the permission of the Vice Chancellor or  without obtaining leave would be deemed to have abandoned his service. It  was further submitted that having regard to the fact that the High Court had  directed the Executive Council to dispose of the Respondent’s  representation which having been done by resolution dated 9.1.2003 and the  same having been confirmed on 23.3.2003 and the same having not been  challenged by the writ petitioners, the impugned judgment cannot be  sustained. It was next contended that the High Court admittedly proceeded  on the basis that the Respondent is guilty of misconduct and in that view of  the matter, no direction for his reinstatement in services without back wages  could have been issued and, therefore, it was necessary for it to arrive at a  finding that the punishment awarded by the University was shockingly  disproportionate. In any event, the High Court should have remitted the  matter back to the disciplinary authority for imposing appropriate  punishment on the Respondent.

       Mr. Jaideep Gupta, learned senior counsel appearing for the  Respondent, on the other hand, submitted that the University admittedly  did not proceed on the basis that the Respondent committed an act of  misconduct. The question, according to Mr. Gupta, on the aforementioned  premise is as to whether the circulars dated 5/10,1990 and 25.03.1998 on  the basis whereof the Respondent has been held to have abandoned his  services are valid in law and whether the post-decisional hearing given to  the Respondent pursuant to the direction of the Court can be said to be fair  and reasonable.  

According to the learned counsel, by reason of the impugned  circulars, the Vice Chancellor had not been conferred with the power to  declare the services of an employee of the University have been  abandoned.  The circulars are invalid beyond the Statute making power  under the Act.  Even if it be held that the said circulars were valid in law  the principles of natural justice were required to be complied with.  

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Determination of the matter fairly and in good faith was furthermore a pre- condition for exercise of such power; but as would appear from the fact of  the present case, the Respondent cannot be said to have been fairly dealt  with by the statutory authorities.  

       The University is a creature of the said Act.  It can make statutes  and ordinances by way of subordinate legislation to deal with the subjects  enumerated therein. Statute 20 provides for the "Penalties and Disciplinary  Authorities". It covers minor and major penalties. Statute 21 lays down  power upon the authorities to impose major penalties. In terms of Statute  21.1, the Executive Council is competent to impose any of the penalties  specified in Rule 20 on an employee. Statute 22 directs a disciplinary  authority to institute disciplinary proceedings against any employee on  whom the disciplinary authority was competent to impose under those  rules; Statute 23 lays down the procedure for imposing penalties. Statute  23.1 provides that "no order imposing any of the penalties specified in  clauses (v) to (ix) of rule 20 shall be made except after an enquiry held as  may be in the manner provided in the said rule and rule 24.  Statute 31  provides that for pressing allegations of misconduct against a teacher, he  may be placed under suspension. However, Clause (b) of Statute 31  provides "Notwithstanding anything contained in the terms of his contract  or service or of his appointment, the Executive council shall be entitled to  remove a teacher on the ground of misconduct".  

Ordinance 10.1 provides as under:

"10.1   Removal of employees of the University  shall be regulated as per Statute 31 for teaching  staff and Statute 32 for all employees of the  University other than teachers."

                 Admittedly, the procedure laid down for imposition of major  penalty had not been followed in the instant case.  The Respondent, thus,  had not been proceeded against for commission of any misconduct.  The  sole question, which, therefore, arises is as to whether in the facts and  circumstances of this case, the notification could be invoked against the  Respondent.

       Although in the application for grant of special leave to appeal, it  is stated that various circulars/letters were issued upon adopting resolutions  by the Executive Council but before us only two notifications have been  produced.  The first one was issued on 5-10/9/1990 whereby and  whereunder the existing Clause of 10.5 of the Ordinance stood amended in  the following terms:

"10.5.           Whenever a teaching/Non-teaching  employee fails to return to the University within  forty five days of the expiry of leave duly granted  to him, his services shall be deemed to have been  abandoned by him from the date the leave expires.

Provided that the Executive Council on good cause  being shown by the concerned employee may  waive the abandonment on such terms as the  Council may decide."                  We have noticed hereinbefore that a notification was issued on  25.3.1998.  The said notification was purported to have been in terms of a  resolution adopted by the Executive Council in its meeting held on August  13-14 & October 12-15, 1997 (E.C.R. No.514, Corrected under E.C.R.  No.577 of February 28 - March 1 & 2, 1998).  The resolution of the  Executive Council had not been produced before us.  However, a bare  perusal of the said purported notification dated 25.3.1998 would clearly  show that the Executive Council had in the said meeting been only

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considering the question of taking disciplinary action against the  employees for having gone abroad without the permission or without the  sanctioned leave and those who have overstayed without the prior approval  of the University.  Although, leaving the institution without the prior  permission of the Vice Chancellor would fall within the purview of  misconduct; availing of leave undisputedly would be governed by the leave  Rules framed by the University.  Proceeding on leave without the same  being sanctioned or overstaying after the period of sanctioned leave is  over, would undisputedly come within the purview of the term  ’misconduct’.   It is, however, true that only because the action on the part  of the employee to avail leave without any prior sanction thereof or  overstay despite expiry of the period of leave, would amount to  misconduct, the statutory authorities would not be denuded with power to  make an appropriate statute that in certain situation the employee would be  deemed to have abandoned his services.  However, such a provision could  not be laid down by an executive direction.  Matter relating to cessation of  employment is governed statute and ordinance.  Any matter touching the  said subject, thus, must be provided for by a subordinate legislation, i.e.,  either by framing a statute or an Ordinance.  There cannot be any doubt  whatsoever that a statute could only be made in the manner laid down  under the Act.  From the notification dated 25.3.1998, it appears that by  reason thereof, the Executive Council did not propose to make any  amendment to the existing ordinance nor intended to lay down any new  law.  Those matters, which are enumerated in Sections 17 and 18 of the  Act, could be dealt with only in the manner laid down thereunder.  It is not  disputed that the matters relating to terms and conditions of services, as  also disciplinary action, are governed by the statute/Ordinance.  In fact, no  provision relating to abandonment of service has been inserted in the  ordinance as had been done by way of Clause 10.5 in terms of notification  dated 5-10/September 1990.  It, however, stands admitted that the said  ordinance is not attracted in the instant case.

       We, therefore, are required only to consider as to whether the  notification dated 25.3.1998 is attracted in this case.   The said notification  was issued only by way of guidelines.  It is sub-divided into two parts;  whereas the first part provides for consequences of overstay without  permission for more than 45 days at different points of time, the second  part relates to the employees who have overstayed without permission for  more than 45 days from the date of issue of the University resolution.   Only in regard to the second part, it was stated that the services of such  employees "would be abandoned as per the existing rules".

       The expression ’existing rules’ indisputably would mean the procedure  laid down under the rules, i.e., in terms of the provisions of the Statute or  Ordinance, which as indicated hereinbefore lay down matters relating to  initiation of disciplinary action against the employees.           The Executive Council, the Vice Chancellor or any other  authority, who are creatures of Statutes, must act within the four-corners  thereof.  They were also required to follow the procedure laid down for  initiation of a disciplinary proceeding against an employee.

       Where a matter is covered by one or other clauses contained in  Section 17 or 18 of the Act any modification/amendment/substitution  thereof was required to be carried out strictly in the manner laid down  thereunder. We have noticed hereinbefore that the Statute and the  Ordinance not only deal with the manner in which the recruitment of a  faculty member is to be carried out, but also lay down the terms and  conditions of services, the manner, in which the proceeding for  commission of misconduct by a delinquent officer, was to be initiated and  the punishments imposed.  It was, therefore, improper on the part of the  authorities including the Executive Council to create a new punishment or  create a new exit door for the employees to throw him out of the services  of the University.   It is in that sense the purported circulars issued by the  Registrar in terms of the purported resolutions adopted in the meetings of

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the Executive Council or otherwise must be held to be ultra vires.   It will  bear repetition to state what can be the subject matters of the executive  instructions issued under Section 10 of the Act must be those in respect  whereof no specific provision exists in the Act, e.g., Sections 17 and 18 of  the Act.

In State of Madhya Pradesh & Anr. v. M/s. G.S. Dall & Flour  Mills [1992 Supp. (1) SCC 150], a three-judge Bench of this Court  opined:-  

"\005The contention that "instructions" could not  override the effect of the statutory notification was  repelled by the court on the ground that the  validity and effectiveness of the instructions can be  supported by reference to Article 162 of the  Constitution as filling up a lack of guidelines in the  notification."

In DDA and Ors. v. Joginder S. Monga and Ors. [(2004) 2 SCC  297], this Court categorically held:

"It is not a case where a conflict has arisen  between a statute or a statutory rule on the one  hand and an executive instruction, on the other.  Only in a case where a conflict arises between a  statute and an executive instruction, indisputably,  the former will prevail over the latter."

It was further noticed:          "Executive instructions can supplement a  statute or cover areas to which the statute does not  extend. But they cannot run contrary to statutory  provisions or whittle down their effect."

       Even otherwise, the said purported notification dated 25.3.1998  does not and/or cannot create a new misconduct and/or provide for a legal  fiction providing that the employee would be deemed to have abandoned  his service. The said notification was issued for laying down certain  guidelines and, thus, by reason thereof no independent misconduct could  be created.   The purpose for issuing the said circular evidently was to lay  down broad guidelines in regard to the quantum of punishment which  should be imposed, as would be evident from the fact that Section (A)  thereof deals with the cases of those employees who had gone abroad  without prior permission (which itself is a misconduct) and overstaying the  leave for more than 45 days. The quantum of punishment has been  specified for commission of misconduct for the first, the second, the third  and the fourth time.

       Section (B) thereof deals with the cases of those employees, who  have overstayed abroad without prior permission for more than 45 days  from the date of issue of the notice by the University, their services would  be treated to be abandoned as per the existing rules. The said notification is  vague and obscure.  It does not take into consideration the situation where  a person may leave the campus without obtaining leave. If a person  commits the same misconduct by staying within India, although no leave  has been obtained, he would not come within the purview thereof but only  if he goes abroad and overstays, the circular letter would come into play,  which would mean that for initial stay he had the requisite permission and  only in case of overstay he would be held to have not obtained any prior  permission, and only in such an event, he would come within the purview  of the said provision. In terms of the said notification no legal fiction is  created. Even otherwise, no legal fiction in law can be created by an

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administrative order.  The circular letter states that the services of such  employees would be abandoned as per existing rules, which would mean  that there existed provisions in the rules laying down the condition as to  when a person would be deemed to have abandoned the services.   Admittedly, no such rule exists.  

       Section (A) of the said notification, as noticed hereinbefore,  speaks of imposition of punishment which ex-facie would mean imposition  of punishment upon following the existing rules.  Section (B) of the said  circular cannot, thus, be given different meaning particularly when it  speaks of procedure laid down as per the existing rules.

In any view of the matter in terms of the said notification dated  25.3.1998, no authority has been conferred upon the Vice Chancellor to  take such a decision. Significantly, even in the office orders dated  30/31.7.1997, 24.3.2000 issued to the Respondent, it was clearly stated that  the Respondent had committed a misconduct by violating the University  Rules.  By reason of the said notices, the Respondent had been asked to  show cause as to why action should not been taken against him for his  alleged acts of misconduct.  The Respondent in response to the said notices  submitted his reply which might or might not have been accepted, but by  reason thereof, the Vice Chancellor of the University could not have taken  a different stand while issuing office memo dated 18.4.2000 so as to say  that ’he would be deemed to have abandoned his services w.e.f. 1.3.2000.

       It is significant to note that a copy of the said letter was forwarded  to the Respondent at the address of his wife. According to the Respondent,  he did not receive the letter before 31.5.2000 but we are not concerned  therewith.  

       Yet again, the Vice Chancellor, by office memo dated 4.5.2000,  stated  :

       "AND WHEREAS, the aforesaid Dr. Shri  Kant in the above mentioned communication  finally prays for submission to avail summer  vacation and assures to join immediately  thereafter.

       AND WHEREAS, all the above facts show  that the aforesaid Dr. Shri Kant has admittedly  unauthorisedly proceeded on leave without any  sanction and also without permission of the  competent authority, which is against the  Univesity rules and directives issued by the  University to regulate foreign visits.

       AND WHEREAS the aforesaid Dr. Shri  Kant has not seriously taken note of my earlier  order and failed to resume duty in Institute of  Medical Sciences, Banaras Hindu University till  the date.

NOW, THEREFORE, I, Y.C. Simhadri, vice  Chancellor, Banaras Hindu University, after  considering the entire matter in details and on  merit along with the reply of the aforesaid Dr. Shri  Kant, Reader, Department of Ophthalmology,  Banaras Hindu University dated 12.4.2000, hereby  pass the following orders:

(A)     That the aforesaid Dr. Shri Kant be clearly  informed that his explanation received vide  letter dated 12.4.2000, has been found highly  unsatisfactory.

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(B)     That he be given the last and final  opportunity to resume his duties in Institute  of Medical Sciences, BHU on or before 17th  May, 2000.  This is notwithstanding the fact  that my earlier orders dated 23.3.2000  directing him to report for duty immediately,  have not been complied by him.

(C)     That he be further informed that in case he  does not report for duty on or before 17th  May, 2000, it would be presumed that he is  no more interested in the University service  and his services shall be deemed to have  been abandoned by him with effect from 1st  March, 2000 without any further notice in  the matter."

       In the said notice evidently the Vice Chancellor was not correct  when he stated that the Respondent had admittedly proceeded on leave  unauthorizedly.  He may, however, be correct that the Respondent had left  without the permission of the competent authority.  

It is not disputed that ex-post facto permission could also have  been granted.  Moreover, the said office memo does not in any way deal  with the Respondent’s contention that he should have been granted leave.  Why the Respondent’s application for grant of leave had not been  favourably considered by the Vice Chancellor, is not known.  The Vice  Chancellor clearly framed an opinion that the Respondent has not obeyed  his directions and he had not seriously taken note of his order.   The notice,  thus, speaks of a misconduct.     

It is furthermore evident that the Vice Chancellor in his notice  clearly demonstrated that he had made up his mind.  He apparently had  arrived at a conclusion that the Respondent had committed misconduct and  thus, it has to be informed that his notice was issued by way of mere  formality.  

In the office memo dated 20/22.5.2000, the Vice Chancellor  reiterates that the Respondent would be deemed to have abandoned his  services and while doing so, his explanation has been found to be  unsatisfactory.  The Respondent was fond to have not complied with his  earlier direction but then again he was given an opportunity to resume his  duty on or before 17.5.2000 and despite the same he did not join his duties.   He had gone to the extent of saying that the Respondent must have planned  his visit much in advance.

Yet again the copies of the said Memos were sent to the  Respondent’s permanent address or at the address of his wife.

We may, at this juncture, notice the office memo dated 7.8.2000.   The Respondent appeared to have been called upon to produce certain  documents, which are as follows:

"1.     Copies of documents in support of his  having attended scientific deliberations  during the period of his stay abroad.

2.      The details of the institutions/country and the  date of his visit to these institutions.

3.      The certificate of having attended Frankfurt  Retina Meeting on 12th April, 2000.

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4.      Certificate of having attended the Annual  Congress of Royal College of  Ophthalmologists at Harrogate, U.K. along  with the details of his registration,  remittance of registration fee etc.

5.      Copies of documents in support of his  working as Honorary Fellow along with the  offer of the institution received from the  Institution concerned and your acceptance  thereto.

6.      Photostat copy of his passport (all pages).

7.      Any other relevant documents, if considered  necessary by him, in support of the facts  mentioned in his representation dated 21st  July, 2000."

The Respondent had produced the documents specified at Sr.  Nos.1, 3, 4 and 6.  So far as the document specified at Sr. No.5 is  concerned, the Respondent did not say that he had held any honorary  position or was working in the said capacity as such.  The Respondent  before us had made an endeavour to tell his part of the story.  We are,  however, not concerned therewith, as we are satisfied that from a perusal  of said Office Memo dated 7.8.2000, it is evident that the Vice Chancellor  had exceeded his jurisdiction in entering into the said question. An enquiry  was, thus, purported to have been initiated against the Respondent by the  said authority not for the purpose of finding out as to whether he had any  justification for leaving his place of work without obtaining the  sanction/permission but as if he had otherwise committed a grave  misconduct.  If he had committed misconduct, indisputably, a disciplinary  proceeding should have been initiated against him. If no disciplinary  proceeding was initiated against him, the question of imposition of any  punishment would not arise.   The Vice Chancellor was also not authorized  therefor as it was the Executive council alone who could initiate a  departmental proceeding.            The Statute and the Ordinance postulate that an order of termination  of services could be passed only by the Executive Council and that too in  the event two-third of the Members were present and voted in support  thereof. Therefore, the Vice Chancellor had no say in the matter.  He was  merely a member of the Executive Council.  He, thus, could not have  initiated any proceeding and imposed any punishment on the Respondent.

We furthermore fail to appreciate as to why, despite the High  Court’s order, the Executive Council could not dispose of the matter  quickly.  Why the matter had not been brought on the agenda by the Vice  Chancellor at the first opportune moment and why the matter had to be  adjourned again and again has not been explained.  It may be that when the  matter was brought on the agenda of the Executive Council on 8.9.2003, it  purported to have approved the orders of the Vice Chancellor that the  Respondent would be deemed to have abandoned his service with effect  from 1.3.2000, but the same did not receive the seal of finality as the  minutes of the meeting had not been approved.

Moreover, a bare perusal of the impugned orders, it would appear  that the Vice Chancellor of the University did not refer to the provisions of  the notifications issued from time to time which would clearly go to show  that the University was not sure as to whether the Respondent has  committed a misconduct or by leaving India without obtaining leave, he  would be deemed to have abandoned his service.

Although, laying down a provision providing for deemed

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abandonment from service may be permissible in law, it is not disputed  that an action taken thereunder must be fair and reasonable so as to satisfy  the requirements of Article 14 of the Constitution of India.  If the action  taken by the authority is found to be illogical in nature and, therefore,  violative of Article 14 of the Constitution, the same cannot be sustained.  Statutory authority may pass an order which may otherwise be bona fide,  but the same cannot be exercised in an unfair or unreasonable manner.  The  Respondent has shown before us that his leave had been sanctioned by the  Director being the Head of the Department in terms of the leave rules.  It  was the Director/Head of the Department who could sanction the leave.   Even the matter relating to grant of permission for his going abroad had  been recommended by the Director.  The Respondent states and it had not  been controverted that some other doctor was given the charge of his  duties. We have indicated sufficiently that the Vice Chancellor posed unto  himself a wrong question.  A wrong question leads to a wrong answer.  When the statutory authority exercises its statutory powers either in  ignorance of the procedure prescribed in law or while deciding the matter  takes into consideration irrelevant or extraneous matters not germane  therefor, he misdirects himself in law.  In such an event, an order of the  statutory authority must he held to be vitiated in law.  It suffers from an  error of law.  

       Such an error of law is capable of being rectified by judicial  review. Reasonableness in the order and/or fairness in the procedure  indisputably can also be gone into by the writ Court.

       We may notice a similar provision being clause 76 of the Bihar  Services Code, which reads as under:

"Unless the State Government, in view of the  special circumstances of the case, shall otherwise  determine, a government servant, after five years’  continuous absence from duty, elsewhere than on  foreign service in India, whether with or without  leave ceases t be in Government employ."  

       The validity of the said Rule came up for consideration before the  Patna High Court in Sobhana Das Gupta v. The State of Bihar & Anr.   [(1974) PLJR 382], wherein the said Rule was struck down relying on Jai  Shanker v. State of Rajasthan [AIR 1966 SC 492] and Deokinandan  Prasad  v. State of Bihar [AIR 1971 SC 1409] stating :  "I may first refer to the decision of the  Supreme Court in the case of Jai Shanker v. State  of Rajasthan (AIR 1966 SC 492). Regulation 13 of  Jodhpur Service Regulation fell to be considered in  that case. The aforesaid regulation was: "An individual who absents himself without  permission for one month or longer after the end of  his leave should be considered to have sacrificed  his appointment and may only be reinstated with  the sanction of the competent authority." Considering this regulation Hidayatullah, J.  observed: "Whichever way one looks at the matter, the  order of the Government involves a termination of  the service when the incumbent is willing to serve.  The Regulation involves a punishment for  overstaying one’s leave and the burden is thrown  on the incumbent to secure reinstatement by  showing cause. It is true that the Government may  visit the punishment of discharge or removal from  service on a person who has absented himself by  overstaying his leave, but we do not think that  Government can order a person to be discharged  from service without at least telling him that they

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propose to remove him and giving him an  opportunity of showing cause why he should not  be removed. If this is done the incumbent will be  entitled to move against the punishment for if his  plea succeeds, he will not be removed and no  question of reinstatement will arise. It may be  convenient to describe him as seeking  reinstatement but this is not tantamount to saying  that because the person will only be reinstated by  an appropriate authority, that the removal is  automatic and outside the protection of Article  311. A removal is removal and if it is punishment  for overstaying one’s leave an opportunity must be  given to the person against whom such an order is  proposed, no matter how the Regulation describes  it. To give no opportunity is to go against Article  311 and this is what has happened here". It may be mentioned that this case arose out of a  suit where a declaration was sought that the  termination of the service of the plaintiff was  illegal. In the case of Deokinandan Prasad v. State of  Bihar. AIR 1971 SC 1409 the true effect of the  decision in Jai Shanker’s case was considered. A  reference was also made to Rule 76 of the Bihar  Service Code. In this context it was observed: "A contention has been taken by the  petitioner that the order dated August 5, 1966 is an  order removing him from service and it has been  passed in violation of Article 311 of the  Constitution, According to the respondents there is  no violation of Article 311. On the other hand,  there is an automatic termination of the petitioner’s  employment under Rule 76 of the Service Code. It  may not be necessary to investigate this aspect  further because on facts we have found that Rule  76 of the Service Code has no application. Even if  it is a question of automatic termination of service  for being continuously absent for over a period of  five years, Article 311 applies to such cases as is  laid down by this Court in (1966) 1 SCR 825 =  (AIR 1966 SC 492). In that decision this Court had  to consider Regulation No. 13 of the Jodhpur  Service Regulations which is as follows: ’An individual who absents himself without  permission or who remains absent without  permission for one month or longer after the end of  his leave should be considered to have sacrificed  his appointment and may only be reinstated with  the sanction of the competent authority.’ It was contended on behalf of the State of  Rajasthan that the above regulation operated  automatically and there was no question of  removal from service because the officer ceased to  be in the service after the period mentioned in the  regulation. This Court rejected, the said contention  and held that an opportunity must be given to a  person against whom such an order was proposed  to be passed, no matter how the regulation  described it. It was further held to give no  opportunity is to go against Article 311 and this is  what has happened here."

Therein, the law was laid down in the following terms : "The consideration on these two cases makes

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it clear that in the circumstance as in the present  case, treating the petitioner to have ceased to be in  Government employ amounts to her removal, and  further that the said removal without giving her an  opportunity is to go against Article 311 of the  Constitution. In the circumstances of the present  case, violation of Article 311 of the Constitution is  writ large. There can, therefore be no doubt that  the order under Annexure 2 is illegal, and the  petitioner cannot be deemed to have ceased to be  in Government employ on the basis of the said  order or on the basis of Rule 76 of the Service  Code." The Respondent herein had filed four writ petitions.  Some interim  orders were also passed in his favour.  He did not get the benefit of any of  the said orders.  In his fourth writ petition, the Executive Council was  directed to consider his case.  It did not do so for more than two years.   Why despite the High Court’s order, the Vice Chancellor failed to place  the matter before the Executive Council is not disclosed.  The resolution of  the Executive Council dated 8/9th January, 2003 was also not final.  The  same was placed before the High Court by way of a supplementary  counter-affidavit only on 23.3.2003 whereas the matter was heard much  prior thereto and the judgment was reserved.  Judgment was delivered on  25th March, 2003 which again go to show that an attempt had been made  by the University to stall the proceedings before the High Court.  Before us  only the University has taken a stand that even the Executive Council had  put its seal by way of approval of the order of the Vice Chancellor.

As the initial order passed by the Vice Chancellor was wholly  without jurisdiction, the same was a nullity and, thus, the purported  approval thereof, by the Executive Council would not cure the defect.   

Even if we do not take into consideration the legality,  reasonableness or otherwise of the resolution of the Executive Committee,  it is clear that so far as the order passed by the Vice Chancellor is  concerned, he failed to consider the question as to whether the Appellant  was otherwise entitled to leave.

The Vice Chancellor appears to have made up his mind to impose  the punishment of dismissal on the Respondent herein.  A post decisional  hearing given by the High Court was illusory in this case.  

In K.I. Shephard & Ors. etc. etc. v. Union of India & Ors. [AIR  1988 SC 686], this Court held :

"\005It is common experience that once a decision  has been taken, there is tendency to uphold it and a  representation may not really yield any fruitful  purpose."    {See also Assam Sillimanite Ltd. v. Union of India  [(1990) 3  SCC 182] and H.L.Trehan v. Union of India [AIR 1989 SC 568].}  

We have noticed hereinbefore that the nature of leave, inter alia,  was compensatory one.  Although it cannot be claimed as a matter of right  but an employee who had worked during summer vacation would have a  legitimate expectation that he can avail the same.  He was also entitled to  be granted detention leave, unless thee exists a just reason to refuse the  same.  We have noticed hereinbefore that the Head of the Department  granted the leave and made recommendation for grant of permission.  The  Vice Chancellor even did not consider the same.   

An order passed by a statutory authority, particularly when by  reason whereof a citizen of India would be visited with civil or evil  consequences must meet the test of reasonableness.  Such a test of

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reasonableness vis-‘-vis the principle of natural justice may now be  considered in the light of the decisions of this Court.   

The question came up for consideration before a three-Judge Bench  decision of this Court, in D.K. Yadav v. JMA Industries Ltd. [(1993) 3  SCC 259], wherein emphasizing the requirements to comply with the  principles of natural justice while terminating the services of the  employees on the touchstone of Article 21 of the Constitution of India; it  was held that not only the procedure prescribed for depriving a person of  his livelihood must meet the challenge of Article 14 but also the law which  will liable to be decided on the anvil thereof.   

Here again, this Court opined that Article 14 requires that the  procedure adopted must be just, fair and reasonable.  It was furthermore   held :

"Article 21 clubs life with liberty, dignity of  person with means of livelihood without which the  glorious content of dignity of person would be  reduced to animal existence.  When it is  interpreted that the colour and content of  procedure established by law must be in  conformity with the minimum fairness and  processual justice, it would relieve legislative  callousness despising opportunity of being heard  and fair opportunities of defence.  Article 14 has a  pervasive processual potency and versatile quality,  equalitarian in its soul and allergic to  discriminatory dictates.  Equality is the antithesis  of arbitrariness."

       This Court opined that right to life enshrined under Article 21  would include the right to livelihood and thus before any action putting an  end to the tenure of an employee is taken, fair play requires that reasonable  opportunity to put forth his case is given and domestic enquiry conducted  complying with the principles of natural justice.

       In Uptron India Ltd. v. Shammi Bhan & Anr. [(1998) 6 SCC  538], this Court was considering the validity of the provisions of the  Standing Orders of the company containing a clause that services of the  workmen would be liable for automatic termination.  This Court opined that  if prior to resorting thereto an opportunity of hearing is not granted, such a  provision would be bad in law.

       The said legal position was reiterated in Scooters India Ltd. v.  M. Mohammad Yaqub & Anr. [(2001) 1 SCC 61], where again  requirement to comply with the principles of natural justice was  highlighted.   

The matter may, however, be different in a case where despite  having been given an opportunity of hearing, explanation regarding his  unauthorized absence is not forthcoming or despite giving him an  opportunity to join his duty, he fails to do so, as was the case in Punjab &  Sind Bank & Ors. v. Sakattar Singh  [(2001) 1 SCC 214].

       In Lakshmi Precision Screws Ltd. v. Ram Bhagat [(2002) 6  SCC 552], a Division Bench of this Court was considering clause 9(f)(ii) of  the Standing Orders which reads as under :

"9.(f) Any workman who,

       *       *       *

(ii) absents himself for ten consecutive working

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days without leave shall be deemed to have left the  firm’s service without notice, thereby terminating  his service."

The workman therein offered an explanation and having regard  thereto, the Labour Court came to the conclusion that the action of the  management in terminating the services of the workman therein was not  justified.  When the matter reached this Court, it was opined:-

"Let us, therefore, analyse as to whether this  particular Standing Order in fact warrants a  conclusion without anything further on record or to  put it differently \026 does it survive on its own and  that being a part of the contract of employment  ought to govern the situation as is covered in the  contextual facts."

Referring to the decisions noticed by us hereinbefore, it was held :

"It is thus in this context one ought to read  the doctrine of natural justice being an inbuilt  requirement on the Standing Orders.  Significantly,  the facts depict that the respondent workman  remained absent from duty from 13.10.1990 and it  is within a period of four days that a letter was sent  to the workman informing him that since he was  absenting himself from duty without authorized  leave he was advised to report back within 48  hours and also to tender his explanation for his  absence, otherwise his disinterestedness would  thus be presumed."

The well settled principle of law as regards necessity to comply  with the principles of natural justice was again reiterated, stating:-

"Arbitrariness is an antithesis to rule of law,  equity, fair play and justice \026 contract of  employment there may be but it cannot be devoid  of the basic principles of the concept of justice.   Justice-oriented approach as is the present trend in  Indian jurisprudence shall have to read as an inbuilt  requirement of the basic of concept of justice, to  wit, the doctrine of natural justice, fairness, equality  and rule of law."               

       A provision relating to abandonment of service came up for  consideration yet again in Viveka Nand Sethi  v. Chairman, J&K Bank  Ltd. & Ors. [(2005) 5 SCC 337] before a Division Bench of this Court.   This Court opined that although in a case of that nature, principles of  natural justice were required to be complied with, a full-fledged  departmental enquiry may not be necessary,  holding :

"A limited enquiry as to whether the  employee concerned had sufficient explanation for  not reporting to duties after the period of leave had  expired or failure on his part on being asked so to  do, in our considered view, amounts to sufficient  compliance with the requirements of the principles  of natural justice."

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       Mr. Dwivedi placed strong reliance upon the decision of this  Court in Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7  SCC 529].  In that case, interpretation of Rule 5(8)(ii) came up for  consideration which is in the following term :

"Rule 5(8)(ii) \026 An officer or other employee who  absents himself without leave or remains absent  without leave after the expiry of the leave granted  to him, shall, if he is permitted to rejoin duty, be  entitled to no leave allowance or salary for the  period of such absence and such period will be  debited against his leave account as leave without  pay unless his leave is extended by the authority  empowered to grant the leave.  Wilful absence from  duty after the expiry of leave may be treated as  misconduct for the purpose of clause 12 of Chapter  IV of the Executive Ordinances of AMU and para  10 of Chapter IX of Regulations of the Executive  Council."

       It was held that a show cause notice and reply would be necessary.   If no show cause notice had been given, this Court held that the principles  of natural justice would be held to be complied with.   

This Court, however, in the special facts and circumstances of  this case and particularly in view of the fact that admittedly leave was  initially granted for a period of two years and an application for extension  thereof was made by the Respondent therein for a further period of three  years which was acceded to only for one year, this Court opined that on the  admitted facts, the absence of a notice to show cause would not make any  difference as the employee admittedly continuing to live in Libya, the  extension of leave sought for was bound to be refused.  

       The parties in this case proceeded on the basis that it was not a  case of misconduct.  The High Court, therefore, in our opinion, wrongly  arrived at the conclusion that the Respondent was guilty of misconduct.  In  that view of the matter, it is also not necessary for us to advert to the  question as to whether in the facts and circumstances of this case, the High  Court could have directed modification in the quantum of punishment  without arriving at a finding that the same was shockingly disproportionate  to the gravity of the charges made against the Respondent herein.    

The fact situation obtaining in this case is entirely different.  Not only  the Respondent made all attempts to join his duties, but, the situation  prevented him from doing so beyond his control.  Furthermore, in this case,  the Vice Chancellor had no jurisdiction at all.  Even the notification dated  25.03.1998 had no application.  

For the reasons abovementioned, we do not find any merit in the  appeal filed by the University.  However, so far as appeal of the Respondent  is concerned, although the conduct of the University is deplorable having  regard to the fact that the Respondent has suffered a lot and has not been  allowed to join his duties for a long time and keeping in view the facts and  circumstances of this case, we are of the opinion that his back wages should  be restricted to 75%.  The Respondent shall also be entitled to costs of the  appeal.  Counsel’s fee is assessed at Rs.10,000/-.

       In the result, Civil Appeal No. 4147 of 2003 is dismissed whereas  Civil Appeal No. 248 of 2004 is allowed in part.