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PETITIONER: BASUDEO TIWARY

       Vs.

RESPONDENT: SIDO KANHU UNIVERSITY AND OTHERS

DATE OF JUDGMENT:       17/09/1998

BENCH: A.S.  ANAND, S.  RAJENDRA BABU.

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T Rajendra Babu. J Leave granted. The appellant having died during the pendency of the proceedings is now represented by his Legal Representatives. However, for the purpose of convenience we  shall  refer  to him as appellant in the course of this order. Pursuant  to  a  Resolution made by the Syndicate on 24.1.1986.  an order No.  G.A.  13/86  dated  4th  February, 1986 was made appointing the appellant as a lecturer who was made appointing the appellant as a lecturer who was hitherto working as lecturer, Department of History, S.R.T.  College, Dhamri and   was   posted   to   Godda  College.    He  made representation to the Vice-Chancellor for regularisation  of his  services  in  terms  of  the  relevant  statutes of the University and on the basis that  he  had  been  working  as lecturer  in  an affiliated college under private management before the same was taken over as a constituent unit of  the University.   The appellant was informed by a letter sent on 7.5.1993 that his representation had been turned down by the Vice Chancellor.  By another communication he  was  informed that the Vice Chancellor had directed for the termination of the  services  of  the  appellant  on  the  ground  that  on 24.1.1986, the Syndicate had no power to make appointment of the lecturer and therefore his appointment was  not  lawful. Challenging  this  action  of the respondent-University, the appellant  preferred  a  writ  petition  and  sought  for  a direction  to  the  University authorities to regularise his service  with  effect  from  25.1.1978  when  he  was  first appointed  in  the affiliated college which was at that time under  the  management  of  a   private   organisation   and subsequently become a constituent unit of the University. The  brief  facts leading to this situation are that the appellant was working as a lecturer in a post sanctioned by the Government in the S.R.T.   College  at  Dhamri  as  a lecturer in  History.    Though  he  continued  to work as a lecturer in University at the time of take over of the  said college  by the University, the Principal wanted his brother to be appointed as a lecturer of History in the college.  On account of machinations adopted by the Principal though  the

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appellant  had  been  appointed  earlier,  he  was  not even disclosed to  the  University  after  its  take  over.    On 14.10.1982 an agrement was signed between the University and the  Governing  body  of  the  college in terms of which the college was  taken  over  as  its  constituent  Unit.    The inspection  team  had  visited  the  college and submitted a report on 23.9.1981.  In that report  the  appellant’s  name did not  figure.    As  stated earlier it was because of the manipulation of the Principal that his name was  not  shown. Thereafter  representations  were  made  by  him to the Vice Chancellor   putting   forth   his   grievance    and    the representations  were  placed  before  the  Syndicate of the University  which  by  a  resolution   made   on   20.1.1985 constituted  a  Sub-Committee to enquire into his grievance. By a resolution passed on 20.1.1985, the Sub-Committee after enquiry made a report in the following terms.  :-         "From the analyses of above stated  facts,         it  seems  that  the  appointment  of Shri         Tiwari is effective from 25.1.78.    Prior         to  acquisition  that  is  from 25.1.78 to         23.9.81 (leaving  the  period  26.1.79  to         10.11.79  as  he  has  not  submitted  any         reliable  certificate  for  this   period)         certificates   of  Secretaries  cannot  be         relied.  He was certainly working  in  the         college.    On  visiting  college  and  on         enquiry information received  and  as  per         the  said  information it is known that as         Shri  Tiwari  was  working  since  25.1.78         therefore  he desired he should be treated         on first post because Shri.  Vipin  Bihari         Pandey was  appointed  on  11.11.79.   The         second party wanted that he should  remain         on  second  post which was not accepted by         him.   In   this   period,   tussle   also         continued between Secretary and Principal.         He   was   of   the  group  of  Secretary,         therefore, it is possible  that  he  might         not get the protection of Principal.  As a         result  of  this  struggle,  his  name was         neither given to Enquiry Committee and nor         he was allowed to  enter  in  the  college         after  acquisition  on  enter  the college         from 23.9.81.  The certificate  issued  by         Secretary Smt.      Parbha  Devi  for  his         working upto 14.10.82 does not appear very         much reliable and  in  such  circumstance,         after  approximately  three  years service         and legally valid appointment, he has been         removed which does not appear to be  lying         vacant there.      Two  posts  in  History         Department are  sanctioned  there  (Letter         No.   B/111-17 dated 13.6.68 of University         created on 11.5.69 and  second  post  vide         letter No.  1541 dated 1.9.81 of Education         Department of  Bihar  Government.  Because         one post is still lying vacant, therefore,         if it is considered appropriate  Syndicate         can  take  decision for his working in the         post there. The  Report  of  the Sub-Committee was placed before the Syndicate for its consideration in the meeting  held  on 9.5.85.   The Syndicate accepted the report submitted by the Sub-Committee and thereafter in its meeting  on  27th  July, 1985 directed the implementation of its resolution.  Finally

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on  24.1.1986  it took decision that the appellant should be re-appointed on a temporary basis.  He was posted  to  Godda College   and   was   working  as  such  in  that  capacity. Thereafter new Universities  had  been  constituted  in  the State of Bihar.  Both the Dhamri college where the appellant was  working  formerly  and  the  Godda  college  where  the appellant was posted in terms of the  order  dated  4.2.1986 fell  within  the  jurisdiction  of  Sido  Kanhu University, Dumka.  At that stage appellant made  a  representation  for regularisation  of his service with effect from 25.1.78 from which date he claimed to have been appointed which  was  not accepted, but on the other hand, the Vice Chancellor decided to terminate his services. Mr.  Sudhir Chandra, learned Senior Advocate for the appellant  submitted  that  the University had the necessary jurisdiction  to   enter   into   agreement   with   private institutions for  promoting  the  purpose  of  the  Act:  to assume  the  management  of  any   institution   under   its jurisdiction;  to  take  a decision as to whether of not the appellant was lawfully employed at  Dhamri  College  at  the time  of  take  over  and  to  decide  the  dispute  between appellant  and  other  candidates  as  to  who  was  legally appointed  to  the sanctioned post of lecturer in History in terms  of  Section  4  (14)  of  the  Bihar  University  Act (hereinafter referred   to   as  "the  Act").    He  further contended on the basis of this provision  that  appointments made  in  the  colleges  and  direct  the appointment of the appellant.  He submitted that in this  background  appellant having  been  appointed,  it was not at all open to the Vice Chancellor to have treated such appointment  as  not  having been  validly  made  and  to  terminate  the services of the appellant.  He further submitted that at any rate the  order made  by  the Vice Chancellor was contrary to the principles of natural  justice  inasmuch  as  the  appellant  had  been appointed to a post in the University and he was holding the same  and  without  giving any opportunity of hearing to the appellant, the order in question could not have been passed. Shri  Akhilesh Kumar Pandey, learned counsel for the respondent  submitted  that  the  appointment  made  by  the University  was  not at all proper inasmuch as the appellant should have been appointed to a post in the service  of  the University  purely on temporary basis not exceeding a period of 6 months.  Since the appellant had been appointed  for  a period longer than that it was not open to the University to do so  without  the  express sanction of the Government.  In this situation it was certainly open to the Vice  Chancellor to  treat the appointment made as contrary to the provisions of the Act or statutes or rules or  regulations  or  in  any other manner  irregular.    If that was so, it was certainly not  necessary  for  the  University  to  have  afforded  an opportunity of being heard to the appellant.  He relied upon Section  35(3)  of  the  Act  which  was introduced into the enactment by an amendment made by Bihar Act 17 of 1993 which came into effect from 22.8.93. Several contentions have been addressed  by  learned counsel on either side. However, for the purposs of disposal of this appeal, it is suffice to consider only one aspect of the matter and that is, whether the appellant had been given an   opportunity  of  being  heard  before  terminating  his services and  in  the  absence  of  the  same  whether  such termination  is valid. The Hich Court took the view that the appointment of the appellant made by the  Syndicate  of  the University by its resolution dated 24.1.86 is illegal and on that  basis  took  the  view  that  the  termination  of the services was in order but did not examine  the  aspect  with

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which  we  are  concerned  in  the  present  case  as to the non-obsetvance of rule of Audi Alteram Partem. The law is  settled  that  non-arbitrariness  is  an essential  facet of Article 14 pervading the entire realm of State action governed by Article 14.   It  has  come  to  be established,  as  a further corollary, that the audi alteram partem  facet  of  natural  jistice  is  the  antithesis  of arbitratiness.   In  the  sphere of public empolyment, it is well sellted that any action taken by the  employer  against an  employee  must  be  fair,  just and reasonable which are components of fair treatment.  The  conferment  of  absolute power to terminate the services of an employee is antithesis to fair,  just  and  reasonable  treatment.  This aspect was exhustively considered by a cibstutution Bench of this Court in  Delhi  Iransport Corporation vs. D.T.C. Mazdoor Congress reported in AIR 1991 SC 101. In orderd  to  impose  procedural  safeguards,  this Court  has  read  the requirement of natural justice in amny situations when the statute is silent  on  this  point.  The approach  of  this  Court in thsi regard is that omission to impose the hearing requirement in the  statute  under  which the  impugned action is being taken does not exclude hearing - it  may  be  implied  from  the  nature  of  the  power  - particularly   when  the  right  of  a  party  ius  affected adversely. The justification for reading such a  requirement is   that   the   Court  merely  supplies  omission  of  the legislature. (vide Mohinder Singh Gill & Anr. vs. The  Chief Election  Commissioner & Ors. AIR 1978 SC 851) and except in case of direct legislative negation  or  implied  exclusion. (vide S.L. Kapoor vs. Jagmohan & Ors. AIR 1981 SC 136) In  the light of these principles of law, we have to examine the scopeof provision of Section 35(3)  which  reads as follows :-         "35(3)  Any  appointment or promotion made         contrary to the  provisions  of  the  Act,         Statutes,  rules  or regulations or in any         irregular or unauthorised manner shall  be         terminated at any time without notice. The said  provision  provides  that  an  appointment could  be  terminated at any time without notice if the same had been  made  contrary  to  the  provisions  of  the  Act, statutes,  rules  or  regulations  or  in  any  irregular or unauthorised manner.  The condition precedent  for  exercise of  this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or  otherwise.    In order  to  arrive  at  a  conclusion  that an appointment is conbtrary to the provisions of the Act, statutes,  rules  or regulations etc.    a  finding has to be recorded and unless such a finding is recorded, the termination cannot be  madem but  to  arrive  at such a conclusion necessarily an enquiry will have to be made as  to  whether  such  appointment  was contrary to  the  provisions  of the Act etc.  If in a given case such  exercise  is  absent,  the  condition  precendent stands unfulfilled.  To arrive at such a finding necessarily enquiry  will have to be held and in holding such an enquiry will the person whose appointment is under wnquiry will have to be issued to him.  If notice is not given to him then  it is  like  playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected,  is not  given  notice  of such a proceeding and a conclusion is drawn in his absence, such a conclustion would not be  just, fair  or  reasionable  as  noticed  by  this Court in D.T.C. Mazdoor Sabha’s case.  In such an event,  we  have  to  hold that  in  the  provision  there is an implied requirement of hearing for the purpose of arriving at a conclusion that  an

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appointment had been made contrary to the Act, statute, rule or regulation  etc.    and  it  is only on such a conclusion being drawn, the services of the person could be  terminated without  further  notice.  That is how Section 35(3) in this case will have to be read. Admittedly in this case notice has not been given to the  appellant  before  holding  that  his  appointment   is irregular  or  unauthorised  and ordering termination of his service. Hence the impugned order terminating the sevices of the appellant cannot be sustained. The appellant has since demised during the  pendency of  these  proceedigs,  no  further  direction  either as to further inquiry or reinstatement can be  given.  We  declare that  the  termination of the appellant by the respondent as per  the  notification  referred  to  by  us  is   invalied. Consequently,  it  would  be  deemed  that the appellant had died in harness. Needless to say that  the  appellant  would become entitled to the payment of arrears of salary from the date  of  termination  of  his services upto the date of his death on the basis of last pay drawn by him. Let  Respondent take  action  within  a period of three months from today to work out the arrears due to the appellant from the  date  of his termination till his death and pay the same to his legal representatives. In  the  result,  we  allow  the appeal in the terms stated above, set aside the order made by the High Court and allow the writ petition quashing the notification as  stated earlier.  However,  in  the  circumstances  of  the case the parties are directed to bear their own costs.