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PETITIONER: DR. AKSHAIBAR LAL AND OTHERS

       Vs.

RESPONDENT: THE VICE-CHANCELLOR, BANARAS HINDUUNIVERSITY, AND OTHERS.(an

DATE OF JUDGMENT: 10/01/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. KAPUR, J.L. SHAH, J.C.

CITATION:  1961 AIR 1059            1961 SCR  (3) 380  CITATOR INFO :  RF         1965 SC  59  (6)  D          1967 SC 383  (10,14)

ACT: Banaras  University--Disciplinary action against  employees- Enactment   providing  for   special   procedure--Enactment, whether supersedes earlier Procedure or  agreements--Banaras Hindu  University  Act, 1915 (16 of 1915),  s.  18-Ordinance No. 6-Banaras Hindu University (Amendment) Act, 1958 (34  of 1958), Statute No. 30, as amended.

HEADNOTE: On  June  14, 1958, the President of  India  promulgated  an Ordinance  to amend the Banaras Hindu University Act,  1915. By  s.  8 of the Ordinance, the Statutes of  the  University were  amended,  and  in place of  Statute  NO.  30,  another statute  was  substituted,  which  set  up  a  "   Screening Committee  "  to examine the cases of  all  persons  holding teaching, administrative or other posts in the University at the commencement of the Ordinance, in respect of whom  there was reason to believe that their continuance in office would be  detrimental to the interests of the University,  and  to forward its recommendations to the Executive Council to take such action as it may deem fit.  The Ordinance was  repealed by the Banaras Hindu University (Amendment) Act, 1958, which re-enacted  Statute  No. 30.  Under the  re-enacted  Statute before any action could be taken by the Executive Council as referred  to above, the matter had first to be  referred  to the Solicitor-General of the Government of India, who, if he was  of  the  opinion that there was prima  facie  case  for inquiry,  shall refer the case of the person concerned to  a committee, known as the Reviewing Committee.  On receipt  of the   recommendations  of  the  Reviewing   Committee,   the Executive  Council  was to take such action  thereon  as  it thought fit, after giving the person concerned a  reasonable opportunity  for  being heard.  Apart from Statute  No.  30, added  by Parliament, the Executive Council could  terminate the  engagement  of an employee by taking action  under  the terms  of  the agreement, where such agreement  existed,  or under  Ordinance  No.  6,  framed  under  the  Act,  without assigning  a cause, on four months’ notice or  four  months’

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salary in lieu of notice. The cases of the appellants who held posts under the Univer- sity  were considered in accordance with the procedure  laid down  in  Statute No. 30 by the Solicitor-General  who  then sent  up  their  cases  to  the  Reviewing  Committee.   The appellants  appeared  before the Committee  and  made  their representations.  The Committee sent its findings in respect of  the appellants except one to the Executive  Council  who then  called  upon  four of them to  show  cause  why  their services should not be terminated, in view of the 387 findings of the Committee that the continuance in office  of those  appellants  was detrimental to the interests  of  the University.  No notices, however, were sent to appellants 2, 4, 5 and 6. Appellants 1, 3, 7 and 8 having filed  petitions in  the  High  Court  of Allahabad under  Art.  226  of  the Constitution of India for relief against the proposed action and  proceedings having been stayed, the  Executive  Council passed  a  resolution,  No. 89, on May 15,  1960,  that  the consideration  of their cases was postponed till  after  the writ  petitions were disposed of by the High Court.  On  the same day, however, the Executive Council passed resolutions, Nos. 90, 94 to 96 and 99 to 102, terminating the services of all the appellants giving them four or six months’ salary in lieu  of notice.  The appellants challenged the validity  of the  resolutions  on the grounds, inter alia, (1)  that  the Executive Council could not take recourse to the  provisions of  Ordinance No. 6 having started action under Statute  NO. 30, (2) that Ordinance No. 6 was subordinate to Statute  NO. 30  and could not prevail where Statute NO. 30 applied,  (3) that action against respondents 1, 3, 7 and 8 was stayed  by the  High  Court and resolution No. 89 and that  any  action thereafter  under  the  agreement or  Ordinance  No.  6  was incompetent,  and (4) that, in any case, the action  of  the Executive Council was mala fide and a fraud upon the Univer- sity  Act and Statute NO. 30.  The case for  the  University authorities was that the Executive Council could take action under  the  terms of the agreements, where  such  agreements existed  or under Ordinance No. 6 or Statute NO. 30  at  its option, and that where alternative remedies were provided by law, all or any of the remedies could be invoked: Held,  that  the impugned resolutions were ultra  vires  and should be quashed. The  power of terminating services without notice could  not be invoked in the present case, where allegations of conduct detrimental  to the interests of the University had  already been  made and scrutinised by the Solicitor-General and  the Reviewing  Committee and the matter was pending  before  the Executive  Council.   The powers granted by  the  Ordinances were  expressly subject to the Statutes, and the  Ordinances could not prevail over the Statutes. State  of  Keyala v. C. M. Francis and Co. [1961]  3  S.C.R. 181, distinguished. The  words " shall take such action thereon as it may  think fit  "  in  Statute No. 30, gave liberty of  action  on  the recommendations of the Reviewing Committee but lay a duty to form  an  opinion.  The words did not give a  discretion  to take action outside the Statute. The action taken by the University authorities could only be questioned  if  it  was ultra vires and proof  of  alien  or irrelevant  motive  was only an example of the  ultra  vires character  of  the action.  The court was not  concerned  so much with the motives, 388 nor  even with the justice of the action taken by  a  public

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body, like the University, as with its legality. Short v. Poole Corporation [1926] Ch. 66, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 480 to  487 of 1960. Appeals  by special leave from the judgment and order  dated July  15, 1960, of the Allahabad High Court in  Civil  Misc. Writ Nos. 1554, 1561, 1553, 1560, 1556, 1558, 1559 and  1557 of 1960. N....C. Chatterjee, R. K. Garg, S. C. Agarwal, D. P.  Singh, K.  K. Sinha, V. A. Seyid Muhamad and M. K. Ramamurthi,  for the appellants (in C. As.  Nos. 480 and 481 of 60). R....K. Garg, M. K. Ramamurthi, S. C. Agarwal, D. P.  Singh, V. A. Seyid Muhamad and K. K. Sinha, for the appellants  (in C. As.  Nos. 482 to 487 of 60). G. N. Kunzru and I. N. Shroff, for the respondents. 1961.  January 10.  The Judgment of the Court was  delivered by HIDAYATULLAH,   J.-These  are  eight  appeals  against   the judgment and " decree " of the High Court of Allahabad dated July 15, 1960, with special leave granted by this Court.  By the writ petitions, which failed before the High Court,  the appellants had asked that Resolutions Nos. 90, 94 to 96  and 99  to  102 passed by the Executive Council of  the  Banaras Hindu University on May 15, 1960, terminating their services from June 1, 1960, be quashed.  The names of the appellants, the  posts they held and the gist of the Resolutions  passed against them have been set down below :                           Group I 1. Dr. Akshaibar Lal:             Reader in College of (C. A. No. 480 of 1960)           Agriculture. (Resolution No. 100-4months’ pay in lieu of   notice) 2. Dr. Gopal Tripathi             Professor of Chemi- (C. A. No. 482 of 1960)           cal Engineering and                                   Principal, College of                                   Technology. (Resolution No. 101-4months’ pay in lieu of   notice) 389 3.   Pandit Ram Vyas Pandey :       Reader and Head of (C. A. No. 486 of 1960)             Department of Jyotish-                                      Sanskrit Maha-                                      vidyalaya. (Resolution  No.  99---under cls. 4 and 7 of  the  agreement dated March 26, 1931, and Ordinance No. 6 of the  Ordinances of the University-6 months’ pay in lieu of notice) 4.   Dr. Gauri Shankar Tiwari :      Lecturer in Chemis- (C. A. No. 487 of 1960) (Resolution No. 102--4 months’ pay  in lieu of notice)                          Group II 5. Dr. Rain Deo Misra:               Professor and Head (C. A. No. 481 of 1960)            of Department of                                     Botany, College of                                     Science. (Resolution No. 94-under cls. 4 and 7 of the agreement dated February  3, 1959, and Ordinance No. 6 of the Ordinances  of the University---4 months’ pay in lieu of notice) 6.   Mr. Ganesh Prasad Singh:       Lecturer in Physical (C. A. No. 483 of 1960) (Resolution No. 95-under cls. 4 and 7 of the agreement dated January  18, 1946, and Ordinance No. 6 of the Ordinances  of the University-6 months’ pay in lieu of notice) 7.   Mr. Radhey Shyam Sharma:        Lecturer, College of

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(C.  A. No. 484 of 1960)           Technology. (Resolution No. 90-under cls. 4 and 9 of the agreement dated January  21, 1957, and Ordinance No. 6 of the Ordinances  of the University-4 months’ pay in lieu of notice) 8.   Dr. Ram Yash Roy:               Lecturer in Botany, (C. A.  No. 485 of 1960) College of Science. (Resolution No. 96-under  cls.  4 and 7 of the agreement  dated  August  12, 1932,  and  Ordinance  No.  6  of  the  Ordinances  of   the University-6 months’ pay in lieu of notice). 390 The cases of the appellants are very similar; but fall  into two  groups  as indicated above.  The  differences  are  not many,  and  some of them are indicated in the  gist  of  the resolutions  noted against their names.   Other  differences will appear from the facts, which are given below. The  affairs  of the Banaras Hindu University,  for  reasons with which we are not concerned, had been deteriorating, and a   situation   had  arisen  which   required   intervention immediately.   The  President of India, in his  capacity  as Visitor  and in exercise of the powers conferred by s.  5(2) of  the  Banaras  Hindu University Act,  1915,  appointed  a Committee  of  Enquiry  (known as  the  Mudaliar  Committee) consisting of: 1.   Dr. A. L. Mudaliar (President) 2.   Mr. M. C. Mahajan 3.   Dr. P. Subbarayan 4.   Smt.  Sucheta Kripalani 5.  Dr. Nairoji Wadia (Members) to enquire into and report, inter alia, on the general state of  discipline  in  the  University,  keeping  in  view  the disturbances in some of the Institutions of the  University, and  to  suggest  remedies and measures of  reform  for  the betterment of academic life and efficient functioning of the University.  The Committee made a report suggesting that a " Screening  Committee  " should be appointed  to  review  the appointments made to the teaching staff and the work of  the teaching staff, and that action should be taken in the light of the findings of the Screening Committee. On  June  14, 1958, the President of  India  promulgated  an Ordinance (IV of 1958) to amend the Banaras Hindu University Act,  1915.  By s. 8 of the Ordinance, the Statutes  of  the University  were  amended, and in place of Statute  No.  30, another Statute was substituted, which set up a "  Screening Committee ", consisting of (a) a person who is or has been a Judge  of a High Court (Chairman), (b)  the  Vice-Chancellor (Ex officio) and (c) a person having administrative or other experience  in educational matters, to examine the cases  of all persons holding teaching, administrative or other 391 posts   in  the  University  at  the  commencement  of   the Ordinance,  in respect of whom there was reason  to  believe that their continuance in office would be detrimental to the interests   of   the   University,  and   to   forward   its recommendations to the Executive Council to take such action as it may deem fit. The  Ordinance of the President was repealed by the  Banaras Hindu  University  (Amendment) Act, 1958  (XXXIV  of  1958), which re-enacted Statute No. 30 as follows:               " 30. (1) If the Executive Council has  reason               to  believe that the continuance in office  of               any person who on the 14th day of June,  1958,               was  holding any teaching,  administrative  or               other   post  in  the  University   would   be               detrimental   to   the   interests   of    the               University,  it may, after  recording  briefly

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             the grounds for such belief, refer the case of               any  such person, together with the  connected               papers,  if  any, in its  possession,  to  the               Solicitor-General to the Government of India:               Provided  that,  where an  allegation  of  the               nature referred to in this subsection  relates               to  a member of the Executive Council who  was               holding any teaching, administrative or  other               post  in the University on the said date,  the               Executive  Council shall, without  considering               the allegation, refer the case of such person,               together with a copy of the allegation, to the               Solicitor-General to the Government of India.               (2)   If on any such reference the  Solicitor-               General  to  the  Government of  India  is  of               opinion  that there is a prima facie case  for               inquiry, he shall refer the case of the person               concerned to a Committee to be constituted for               the  purpose  by the  Central  Government  and               known as the Reviewing Committee, which  shall               consist of the following persons, namely :-               (a)   a person who is or has been a Judge of a               High Court nominated by the Central Government               who  shall be the Chairman of  the  Committee;               and               (b)   two  persons  nominated by  the  Central               Government  from  among persons who  have  had               administrative   or   other   experience    in               educational matters,               392               (3)   It  shall be the duty of  the  Reviewing               Committee to examine the case of every  person               referred  to it by the Solicitor-General;  and               the  Reviewing Committee shall, after  holding               such  inquiry  into the case as it  may  think               fit, and after giving to the person  concerned               an  opportunity  of  being  heard,  if  he  so               desires,  forward its recommendations  to  the               Executive Council.               (4)   The meetings of the Reviewing  Committee               shall  be  convened by such person as  may  be               appointed for this purpose by the Chairman.               (5)   On receipt of the recommendations of the               Reviewing  Committee,  the  Executive  Council               shall take such action thereon as it may think               fit:               Provided that when the recommendations  relate               to  any such person as is referred to  in  the               proviso to sub-section (1), such person  shall               not take part in any meeting of the  Executive               Council  in  which  the  recommendations   are               considered.               (6)   Before  taking  any action  against  any               person on the recommendations of the Reviewing               Committee,  the Executive Council  shall  give               him  a  reason.  able  opportunity  of   being               heard." Under  the powers granted by this Statute and  after  sundry procedure,  the Solicitor-General sent up the cases  of  the appellants  (and some others, who are not before us) to  the Reviewing  Committee.   The appellants appeared  before  the Reviewing Committee and represented their cases.  Except  in the case of Mr. Radhey Shyam Sharma (Civil Appeal No. 484 of 1960),  whose case was kept pending because certain  matters were  sub judice, the Reviewing Committee sent its  findings

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to  the  University.   These  findings  were  considered  in respect  of the four appellants in Group I (above),  and  on February 13, 1960, the Executive Council passed  Resolutions Nos.  436 to 439 calling upon them to show cause  why  their services  be not terminated, in view of the findings of  the Reviewing Committee that the continuance in office of  those appellants   was  detrimental  to  the  interests   of   the University, which the Executive Council had accepted.  These four appellants showed cause on March 5, 1960, No notices 393 were,  however,  sent  to the four appellants  in  Group  II above, and this is one distinguishing feature in the cases. The four appellants (Group I) filed petitions under Art. 226 of  the Constitution (W.  Ps.  Nos. 712 to 715 of  1960)  on March  9,1960,  in the High Court of  Allahabad  for  relief against the proposed action.  On the same day D.  S. Mathur, J. passed an ad interim order as follows: "  The respondents Nos.  1 to 3 are directed  until  further orders,  not  to take any further  proceedings  against  the petitioners." The  Registrar  of the University then applied to  the  High Court,  and on April 25, 1960, Jagdish Sahai, J.,  made  the following order:               "  In supersession of the interim order  dated               9-3-1960, I order that the proceedings  before               respondent No. 2, Executive Council of Banaras               Hindu   University,   arising   out   of   the               recommendations  of  the  Reviewing  Committee               shall remain stayed." On  May  15, 1960, the Executive Council of  the  University passed a number of Resolutions.  Resolution No. 89 took into consideration  the explanations sent by the four  appellants (Group 1) on March 5, 1960, and the order of the High Court, and it was resolved:               "........ that the consideration of the  above               cases   be  postponed  till  after  the   writ               petitions  above mentioned are disposed of  by               the High Court.  " On  the same day, however, Resolutions Nos. 99 to  102  were passed  terminating  the  services of  the  four  appellants (Group  1)  from June 1, 1960, giving to them  four  or  six months’  salary,  in  lieu of  notice.   In  the  Resolution concerning Pandit Ram Vyas Pandey, there was a mention  that the  action  was taken under cls. 4 and 7 of  the  agreement executed by him and Ordinance No. 6 of the Ordinances of the University.  In the remaining three cases, it was not stated under  what  exercise of power the action was  taken.   Even earlier than the notice to show cause issued on February 13, 1960,  explanations were called from Pandit Ram Vyas  Pandey and Dr. Gopal Tripathi by Resolutions Nos. 278 and 281 dated September 9, 1959, and these explanations were ordered to be filed by Resolution No. 103 50 394 passed  on the same day.  Four Resolutions were also  passed terminating  the services of the other appellants  belonging to Group II. It  was after these Resolutions were communicated  that  the eight  petitions  were filed by the appellants in  the  High Court  of Allahabad.  The High Court by a  common  judgment, which  is  under appeal, dismissed all  the  petitions  with costs. The  case  of the appellants, broadly stated,  is  that  the Executive Council could not take recourse to the  provisions of  Ordinance  No. 6 of the Ordinances  of  the  University,

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having  started action under Statute No. 30, that  Ordinance No.  6  was  subordinate to, Statute No. 30  and  could  not prevail  where Statute No. 30 applied, that  action  against the four appellants in Group I was stayed by the High  Court and Resolution No. 89, and that any action thereafter  under the  agreement  or  Ordinance No. 6  was  incompetent.   The action  of the Executive Council was characterised  as  mala fide and a fraud upon the University Act and Statute No. 30. The  High  Court did not accept any  of  these  contentions. Before  us,  the same points have been urged again,  and  in reply,  the University contends that the  Executive  Council could  take action Under the terms of the agreements,  where such agreements existed, or under Ordinance No. 6 or Statute No.  30 at its Option, and that where  alternative  remedies were  provided by law, all or any. of the remedies could  be invoked. Before  we  deal with these arguments, it  is  necessary  to examine  closely the powers of the Executive Council of  the University,  as they can be gathered from the Banaras  Hindu University  Act, the Statutes and Ordinanaces  framed  under it.   The Act was passed in 1915 (XVI of 1915), but  it  was amended  in  1930,  1951  and  1958.   Originally,  the  Act provided for the framing of Statutes and Regulations by  the University  ;  but in 1951, the  existing  Regulations  were deemed  to  be the first Ordinances under s.  18(2)  of  the amended  Act.   A  further power  to  make  Regulations  was conferred  by s. 19. Thereafter, there were  Regulations  in addition ,to the University Act, Statutes and Qrdinances, We                             395 are  not  concerned with the Regulations, and  no  reference need  be made to them except to say that they  ranked  below the  Ordinances and had to be consistent, with the Act,  the Statutes and the Ordinances. In  the Act, the word "Statute" was defined to’ mean  "  the Statutes  for the time being in force ", and’ there  was  an analogous  definition  of the word " Ordinances  ".  Section 17(2) of the Act enacted that " the first Statutes shall  be those  set out in Schedule I ". The power to frame  Statutes was conferred on the Executive Council by s. 17(3), but  was subject to the previous approval of the Visitor.  This  sub- section,  as  it was amended by s. 4 of  the  Banaras  Hindu University (Amendment) Act, 1958, read as follows:               "  The  Executive Council may,  from  time  to               time,  make new or additional Statutes or  may               amend  or repeal the Statutes; but  every  new               Statute  or  addition to the Statutes  or  any               amendment or repeal of a Statute shall require               the  previous approval of the Visitor who  may               sanction,  disallow  or remit it  for  further               consideration. Section  4A of the Act invested the University with  powers, and sub-ss. (7) and (13) may be quoted here:               "    (7)    to    institute    professorships,               readerships,  lectureships and other  teaching               posts  required  by  the  university  and   to               appoint   persons  to   such   professorships,               readerships, lectureships and other posts;               (13)  to  create  administrative,  ministerial               and   other  necessary  posts  and   to   make               appointments thereto." Section  7 of the Act named the officers and authorities  of the University, but power was reserved to the University  to declare, by statutes, other officers and authorities of  the University. In  addition  to being an authority of the  University,  the

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Executive  Council was appointed the executive body  of  the University.  Sub-section (2) of s. 10 of the Act laid down: "  The  Executive  Council shall exercise  such  powers  and perform such duties as may be vested in it by the Statutes." Section  17 of the Act provided how the statutes were to  be framed and what they were to contain.  We 396 have  already  referred to the first Statutes  of  the  Uni- versity  which were placed in Schedule  of the Act  and  the power  of  the Executive Council to make new  or  additional Statutes or to amend or repeal existing Statutes subject  to the prior approval of the Visitor.  Section 17 provided: "  17(1).   Subject  to  the provisions  of  this  Act,  the Statutes  may  provide  for  all or  any  of  the  following matters, namely:- (c)  the appointment, powers and duties of the  officers  of the University." From  the above analysis, it is clear that the  Act  created the Executive Council as an authority and the executive body of  the  University; but its powers were conferred  and  its duties  were created by the Statutes.  The source  of  power and duties in respect of the Executive Council was thus  the Statutes under the authority of the Act. Section 18 of the Act (as amended in 1951) provided: "  18(1).   Subject to the provisions of this  Act  and  the Statutes,  the Ordinances may provide for all or any of  the following matters, namely:- Ordinances: emoluments  and terms and conditions of service of  teachers of the University." The Ordinances were thus made subordinate to the Act and the Statutes,  and  could not go beyond them  or  derogate  from them. One more provision of the Act as amended in 1951 may be read here.  It is s.19A,which provided:               " 19A. (1) Every salaried officer and  teacher               of  the University shall be appointed under  a               written con. tract, which shall be lodged with               the  University and a copy of which  shall  be               furnished to the officer or teacher concerned.               (2)   Any  dispute arising out of  a  contract               between the University and any of its officers               or  teachers  shall,  at the  request  of  the               officer   or  teacher  concerned  or  at   the               instance  of the University, be referred to  a               Tribunal  of  Arbitration  consisting  of  one               member appointed               397               by the Executive Council, one member nominated               by  the  officer or teacher concerned  and  an               umpire,  appointed  by the  Visitor,  and  the               decision of the  Tribunal shall be final." The powers granted to the Executive Council by the  Statutes may now be seen.  Statute No. 18 was amended in 1958, and is referred to as amended.  It laid down:               " 18(1).  The Executive Council shall, subject               to  the  control  of  the  Visitor,  have  the               management  and  administration of  the  whole               revenue and property of the University and the               conduct  of all administrative affairs of  the               University.               (2)   Subject  to the provisions of  the  Act,               the   Statutes   and  the Ordinances,   the               Executive  Council shall, in addition  to  all               other powers vested in it, have the  following

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             powers, namely:               (i)   To   appoint,  from  time  to   time,...               Principals   of  Colleges   and   institutions               established   by  the  University,  and   such               Professors,   Readers,  Lecturers  and   other               members  of  the  teaching staff,  as  may  be               necessary, on the recommendation of  Selection               Committees   constituted   for   the   purpose               (Proviso omitted)               (ii)  to appoint members of the administrative               staff or to delegate the power of  appointment               to such authority or authorities, or  officers               as  the  Executive Council may, from  time  to               time,  by  resolution,  either  generally   or               specially direct;.. " The power of appointment was thus conferred by the  Statutes on the Executive Council. We now turn to the Ordinances, where the disciplinary  rules are to be found.  On October 13, 1958, the Executive Council by Resolution No. 181 reconstituted the material  Ordinance. Chapter  III  in  part I of  the  Banaras  Hindu  University Calendar  (1958) contains the terms of appointment,  grades, salary  and conditions of service of teachers, officers  and other employees of the University.  That Chapter is  divided into  many sections and sub-sections.  Section 5 deals  with teaching  and  administrative  posts, and  s.  6,  with  the conditions 398 of  service and terms of appointment.  Ordinance No.  2   in this section lays down:               " The conditions of service of the staff shall               be embodied in the Agreement Form of  service.               Every employee shall on confirmation sign  the               agreement Form.  "               Ordinance No. 6, before its amendment, read:               "  The Executive Council shall be entitled  to               terminate the engagement of an employee (i) on               grounds   of  misconduct  and  (ii)   physical               unfitness for good cause and after calling for               and  considering  his  explanation  and  after               giving  four  months’  notice  in  writing  or               payment  of  four months’ salary  in  lieu  of               notice. The   Ordinance  was  unhappily  worded.    The   expression "physical  unfitness  for good cause"  hardly  makes  sense. More difficulty arises by the use of the conjunction  "and". That  word  used  for the first time  in  the  Ordinance  is obviously  used disjunctively; but on the second  and  third time  it is used conjunctively, introducing  two  conditions precedent.   So  far, there is no dispute, though  much  bad drafting.    Dispute  arises  over  the  last  use  of   the conjunction ’and" in the Ordinance.  The appellants  contend that  it must be read conjunctively as introducing  a  third condition precedent, while the University urges that it is a separate  power of termination unconnected with the  others. The  High  Court  was  persuaded  to  read  the  clause   as interpreted by the University and, in our opinion, rightly. In 1958, the Executive Council re-framed this Ordinance  but surprisingly  enough, without any better success.   The  re- enacted Ordinance, as printed in the amendment slip, read: "  6. The Executive Council shall be entitled  to  terminate the engagement of an employee for (i)  misconduct, or (ii) physical unfitness, or (iii)     inefficiency, or

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(iv) breach  on his part of one or more of the terms of  his agreement with the University, after 399 calling  for and considering his explanation in each of  the cases mentioned above; or (v)  after  giving four months’ notice or payment’  of  four months’ salary in lieu thereof. The  dispute this time arises from the careless use  of  the word   "or".   The  Ordinance  mentions  four  reasons   for termination of services, which are numbered (i) to (iv).  In each  of those cases, there is the condition precedent  that explanation must be called for and considered.  So far,  the meaning  is  clear,  even though the drafting  is  far  from commendable.   Then follow a semi-colon and "or" and  number (v).   The  word  "or" does not seek  to  create  an  option between  calling  for and considering an explanation  and  a four months’ notice, etc.  The number (v) and the semi-colon between  " mentioned above " and " or " do not  permit  this reading.   The difficulty, however, does not end there.   If we read the fifth clause as connected independently with the opening words, we get this: "  The Executive Council shall be entitled to terminate  the engagement             of            an             employee for ............................................... (v)  after giving four months’  notice...............  which makes the word "for " superfluous in the sentence. In  our opinion, the sense of the Ordinance can be  obtained by rearranging the matter thus: "  6. The Executive Council shall be entitled  to  terminate the engagement of an employee for  (i) misconduct, or (ii) physical unfitness, or (iii)     inefficiency, or (iv) breach  on his part of one or more of the terms of  his agreement with the University, after calling for and considering his explanation in each of the cases mentioned above; or  (v) after giving four months’ notice or payment of  four months’ salary in lieu thereof " This means that, if action is taken under cls. (i) to  (iv), an  opportunity of showing cause against the termination  of the  service must be given; but action can also be taken  to terminate the service, without assigning a 400 cause,  on  four months’ notice or four months’  salary  ,in lieu  of  notice.  The case of the University  is  that  all these orders of termination of service were passed under the power granted by cl. (v) of this Ordinance, modified by  the terms of the agreements as they existed. The  result  of this analysis shows that the  power  of  the University  to terminate the services of the incumbents  was derived from (a) agreements, (b) Ordinances, and (c) Statute No. 30.  The agreements merely represented the general right of  a master to terminate the services of incumbents,  where they  were subject to agreements, after  reasonable  notice, without  giving any reason.  The Ordinances, in addition  to preserving  that right, gave power to terminate service  for proved  misconduct,  inefficiency  or  physical   unfitness. These   powers,   unless  used  according  to   the   stated conditions, were unexercisable, and in the case of a service which  was protected against arbitrary action, being  perma- nent, could only be invoked in an appropriate instance.   In those cases which would fall within the categories of proved misconduct,   inefficiency  and  physical   unfitness,   the University  was required to take action in  accordance  with

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the Ordinance and the Rules. This  was  the position before the new Statute  No.  30  was added   by   Parliament.   This  legislative   measure   was undertaken  as the result of the sorry state of  affairs  of the  University,  and a special ground was  required  to  be proved.   It  was that the continuance of an  incumbent  was detrimental  to the interests of the University.  The  power to terminate the services of an incumbent on this ground was hedged  in with appropriate safeguards, due to the  struggle for power which it is said, had arisen in the University  in the past; and though the Mudaliar Committee had suggested  a Screening  Committee to go into the cases of  all  teachers, Parliament thought it necessary that before any case reached the Screening Committee (renamed the Reviewing Committee) it should   be  scrutinised  by  the  Solicitor-General.    The procedure  which the new Statute enacted, ensured fair  play and  proper scrutiny.  First, the Executive Council  had  to resolve  that  the continuance in office of  any  particular person 401 was  detrimental  to the interests of the  University.   The reasons for such belief had to be recorded briefly, and  the Resolution together with the connected papers had to be sent to the Solicitor-General.  In the case of a teacher who  was a member of the Executive Council, the Executive Council was not  to consider the allegations but to send the  papers  to the Solicitor-General.  The Solicitor-General had to  decide if there was a prima facie case for enquiry, and then he was to  refer  suitable cases to the Reviewing  Committee.   The Reviewing Committee was then to enquire into the matter, and forward  its recommendations to the Executive Council.   The Executive  Council was thereafter required to proceed  under cl. (6), which was as follows:               " Before taking any action against any  person               on   the  recommendations  of  the   Reviewing               Committee,  the Executive Council  shall  give               him  a reasonable opportunity of being  heard.               "               The   power  of  the  Executive  Council   was               conferred by cl. 5, which provided:               "  On  receipt of the recommendations  of  the               Reviewing  Committee,  the  Executive  Council               shall take such action thereon as it may think               fit.  " The  procedure laid down in Statute No. 30 was  followed  by the University.  The cases of the appellants went before the Solicitor-General  and then before the Reviewing  Committee. In  seven cases out of eight,’ the Reviewing Committee  gave its  opinion.   In  four out of seven  cases,  a  show-cause notice  was  issued under cl. 6 but not in others;  and  the four  appellants  (Group 1) also showed  cause.   They  also obtained  a  stay from the High Court of  Allahabad  against action  under  Statute  No. 30, and  the  Executive  Council decided  to postpone consideration of their cases.  But  the Executive Council abandoned action under Statute No. 30, and proceeded to act under powers which, it thought, flowed from the  agreements  and  the  Ordinances,  and  terminated  the services of the eight appellants, giving four or six months’ salary in lieu of notice. 51 402 In  so  far as the power of terminating services  with.  out notice  was  concerned,  the  general  power  could  not  be invoked,  when  allegations of conduct  detrimental  to  the interests  of  the  University had  already  been  made  and

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scrutinised  by  the  Solicitor-General  and  the  Reviewing Committee  and the matter was pending before  the  Executive Council.  The powers granted by the Ordinances are expressly subject  to the Statutes, and the Ordinances cannot  prevail over the Statutes. Statute  No.  30  provided for  special  action  in  special circumstances.   The existence of the special  circumstances is  expressly admitted, inasmuch as the cases were  referred to  the Reviewing Committee.  The existence of  the  special circumstances  and the special remedy excluded the right  of the  University to invoke its general powers, not  to  start with, but after the special procedure had been  deliberately adopted and had commenced.  If the cases of these appellants had not been sent to the Solicitor-General and the Reviewing Committee  at all, other considerations might  have  arisen. The question is whether after the special procedure was once invoked, it could be dropped in the middle and other  powers exercised. The University relies on three arguments in this connection. It is first contended that the powers of the University were cumulative,  and that the University could resort to any  of the  remedies open to it.  Reliance is placed in support  of this argument on Shankar Sahai v. Din Dial (1) (observations of Mahmood, J., at p. 418), Om Prakash Gupta v. State of  U. P.  (2),  The  State of Madhya  Pradesh  v.  Veereshwar  Rao Agnihotry  3 ), Brockwell v. Bullock (1), Seward v.  "  Vera Cruz"  (5) and Barker v. Edger (6).  It is not necessary  to refer  to  these  cases in detail.  It has  been  laid  down recently   by  this  Court  that,  where  the   law   allows alternative  remedies,  one  or the other  or  both  can  be invoked  unless  one  remedy is expressly  or  by  necessary implication excluded by the other (See State (1)  (1889) I.L.R. 12 All. 409. (2)  [1957] S.C.R. 423. (3)  [1957] S.C.R, 868, (4)  (1889) 22 Q.B.D. 567. (5)  (1884) 10 A.C. 59. (6)  [1898] A.C. 748 (P.C.), 403 of Kerala v. G. M. Francis and Co. (1)).  The question  thus is  whether  there is anything expressly stated  by  law  or clearly  implied  which  would  exclude  powers  under   the agreements  and the Ordinances, when action has  been  taken under the Statutes.  The University Act expressly makes  the Ordinances subject to the Statutes, and in case of any clash between  them,  the Ordinances must be made to  stand  down. Further, Statute No. 30 was enacted by Parliament to meet  a special  situation,  and contained a code for  dealing  with certain  special  kinds  of  cases.   To  that  extent,  the implication  is  not only one way, but is also  clear.   The University could not, having started enquiries under Statute No.  30, abandon the enquiries in midcourse and pass  on  to something  else.  This is illustrated by  the  contradictory Resolutions passed on the same day.  In the case of the four appellants belonging to Group I, action under Statute No. 30 was deferred till after the decision of the High Court.  But one is tempted to ask what possible further action was  con- templated when their services were terminated the same  day. It  may  be pointed out here that dropping of  action  under Statute No. 30 deprived the appellants of the right to  show cause against what had been alleged against them or found by the Reviewing Committee. The appellants characterised the whole action as lacking  in bonafides.  The action can only be questioned if it is ultra vires’  and proof of alien or irrelevant motive is  only  an

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example  of  the  ultra vires character of  the  action,  as observed by Warrington, L.J., in the following passage:               " My view then is that only case in which  the               Court  can interfere with an act of  a  public               body which is, on the face of it, regular  and               within its powers, is when it is proved to  be               in  fact ultra vires, and that the  references               in the judgments in the several cases cited in               argument  to Lad-faith, corruption, alien  and               irrelevant  motives, collateral  and  indirect               objects,  and  so forth, are  merely  intended               when   properly  understood  as  examples   of               matters               (1)   [1961] 3 S.C.R. 181.               404               which  if proved to exist might establish  the               ultra   vires  character  of  the  action   in               question " (Short v. Poole Corporation (1). We are not concerned so much with the motives, nor even with the justice of the action as with its legality, and, in  our opinion,  having  invoked  Statute No.  30  in  the  special circumstances and having gone on with that procedure, it was not possible to undo everything and rely upon other  powers, which  were  not  only  subordinate  but  were  clearly  not available  in  those  special circumstances  which  led,  to action under Statute No. 30. The next argument is that Statute No. 30 itself left liberty of  action,  inasmuch as el. 5 gave power to  the  Executive Council  to  act as it thought fit.  To begin  with,  it  is wrong  to think that the words conferring discretion are  to be read in the abstract.  Those words have to be read within the  four  corners  of  Statute  No.  30.   Tile  words  are permissive,  no doubt, as to the choice of action,  but  are imperative in so far as they require some act completing the intent and purpose of the enquiry itself.  The words " shall take such action thereon as it may think fit " give  liberty of action on the recommendations of the Reviewing Committee, but lay a duty to form an opinion.  The words do not give  a discretion to take action outside the Statute. Lastly,  it  is  argued that the Executive  Council  as  the appointing  authority  had the power also  to  dismiss,  and reference is made to ss. 4(7) and 4(13) of the Act and s. 16 of  the  General  Clauses  Act.   None  can  deny  that  the University  did  possess  such a  power.   The  question  is whether  it  exercised it correctly under the  Statutes  and Ordinances.   We are quite clear that the Executive  Council did  not.   We may say here that we have  not  accepted  the contention  that  the action of the  Executive  Council  was based  upon malice or any indirect or oblique  motive.   The error  was  in  thinking  that  there  were  cumulative   or alternative  powers, even after the adoption of the  special procedure  under  Statute  No. 30.  We  are,  therefore,  of opinion that (1)  [1926] Ch. 66, 91. 405 the  impugned  Resolutions were ultra vires  and  should  be quashed. In  the result, the appeals are allowed.   Resolutions  Nos. 90,  94  to  96 and 99 to 102 dated May  15,  1960,  of  the Executive  Council  of  the  Banaras  Hindu  University  are quashed, and an appropriate writ or writs shall issue to the respondents  to that effect.  The respondents shall pay  the costs of these appeals, as also of the High Court.  Only one set  of  hearing  fee here and in the High  Court  shall  be allowed.

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Appeals allowed.