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PETITIONER: I.N. SUBBA REDDY

       Vs.

RESPONDENT: ANDHRA UNIVERSITY & ORS.

DATE OF JUDGMENT05/04/1976

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT RAY, A.N. (CJ) BEG, M. HAMEEDULLAH

CITATION:  1976 AIR 2049            1976 SCR  (3)1013  1977 SCC  (1) 554  CITATOR INFO :  E&F        1989 SC 558  (6)

ACT:      Civil  Service-Meaning   of  conditions   of   service- Termination   by   way   of   punishment   and   termination simpliciter-Administration  Manual   of  Andhra  University- Sections 7, 8, 9, 10, 11 and 24.

HEADNOTE:      The appellant  joined the Andhra University as a Senior Lecturer in 1960. In 1967, he was promoted as Professor. The appellant entered  into an  agreement with the University as required by the conditions of service. He was confirmed as a Professor in  October 1968.  In October, 1973, the Syndicate passed a  resolution determining  the agreement  of  service with  the   appellant  under   s.  24   of  Chapter   V   of Administration Manual of the Andhra University. A cheque for the salary  for the  six months  being the notice period was also sent  along with  the notice of termination of service. Clause 10  of the  agreement provided for the termination of service simpliciter on giving 6 months notice or a salary in lieu  of   such  notice.  Section  24  also  authorised  the Syndicate to terminate the service of a confirmed teacher by giving 6  months notice or salary in lieu of notice. Section 7  of   the  University  Code  provided  for  suspension  or abolition  of   any  professorship,  readership.  Section  8 provided  for   suspension  or   compulsory  retirement  for sufficient  cause   after  due   investigation.  Section   9 authorised the  Syndicate to remove a teacher for misconduct on his part or for breach by him of one or more of the terms of the  contract. Section  10 authorised  the  Syndicate  to terminate services of a teacher on the ground of ill health. Section  11  prescribed  the  procedure  for  removal  of  a teacher. Section 12 bars a claim for damages or compensation by a teacher against whom a disciplinary action is taken.      The appellant  filed a suit challenging the validity of termination of  his service  which he  withdrew later on. He thereafter filed  a writ petition. In the writ petition, the appellant challenged  the validity  of the order terminating the service  as well as vires of s. 24 of the Administration Manual. It  was also  alleged that the action in terminating

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his service  was mala fide and that it was with the ulterior object of circumventing the procedure prescribed by sections 9 and  11 of the University Code. It was also contended that s. 24  of the  agreement which  provides for  termination of service  without   assigning  any   reason  was  void  being repugnant to  ss. 8  to 12 of Chapter XXIX of the University Code. The  High Court  dismissed the  writ petition  holding that the  impugned action  was neither taken as a measure of punishment for  any misconduct  on the part of the appellant nor  did  it  involve  the  breach  of  mandatory  statutory obligations or any principle of natural justice.      In appeal by special leave the appellant contended :           1.      Section  24  is  ultra  vires  the  powers                conferred on the Syndicate.           2.    The  said section  24 and  clause 10  of the                agreement being  inconsistent with sections 7                to 12  of the  University Code  were void and                ineffectual.           3.    The  services of  the appellant could not be                terminated except  on the ground mentioned in                sections 7 to 10 of the University Code. ^      HELD: 1.  The expression  ’conditions of service’ means all those conditions which regulate the holding of a post by a person  right from  the time  of his  appointment till his retirement and  even beyond  it in matters like pension etc. The Syndicate  has power  to define  terms and conditions of service of teachers of 1014 the University. Section 24 undoubtedly lays down a condition of service of the University teachers and, therefore, cannot be said  to be  ultra vires  the powers  of  the  Syndicate. [1018C-D, G-H]      2. Sections 7 to 12 of the University Code have nothing to do  with the termination simpliciter of the services of a teacher without  casting any  aspersion on  him, which  is a distinct and  separate matter and is provided for in section 24 and  clause 10 of the agreement. As such, neither section 24 nor  section 10  can be  held to be void on the ground of repugnancy to sections 7 to 12. [1019D-E]      3. The present case is merely of termination of service simpliciter without  attaching any  stigma which is governed by the  conditions of  service specified  in the contract of employment.  Case  of  Sirsi  Municipality  v.  Cacelia  Kom Francis Tellis  [1973] 3 S.C.R. 348, relied on. Relationship of master  and servant  is governed  purely by  contract  of employment. Any  breach  of  contract  in  such  a  case  is enforced by  a suit  for wrongful  dismissal and damages. In the  present   case  the   services  have   been  terminated simpliciter in  accordance, with  the terms of the contract. [1019E-G, H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION Civil  Appeal No. 1632 of Appeal by  special leave  from the  judgment and order dated the 10th  April, 1974  of the  Andhra Pradesh  High Court in Writ Petition No. 579 of 1974.      R.K. Garg,  S.C. Agarwal  and  V.J.  Francis,  for  the appellant.      B.  Sen,  S.  Venkata  Reddy  and  G.N.  Rao,  for  the respondents.      The Judgment of the Court was delivered by      JASWANT SlNGH,  J.-This, is  an appeal by special leave

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from the  judgment and  order dated  April 10,  1974, of the High Court  OF Andhra  Pradesh at  Hyderabad passed  in Writ Petition No.  579 of  1974 upholding  the  resolution  dated October 28,  1973, of the Syndicate of the Andhra University (conveniently referred  to hereinafter  as ’the  Syndicate’) terminating the  services of the appellant by payment to him of salary  and allowances  for six  months in lieu of notice for six calendar months under section 24 of Chapter V of the Administration Manual  of the University and clause 10(b) of the written contract dated October 28, 1967.      Briefly stated,  the facts  leading to this appeal are: The appellant  joined the  Anthropology  Department  of  the Andhra University as a Senior Lecturer in 1960. In course of time, he  was promoted  as Professor  of  Anthropology  with effect from October 1, 1967, pursuant to a resolution of the Syndicate  dated  September  26,  1967.  The  conditions  of service annexed to the communication of the Registrar of the University informing the appellant that the Syndicate by its aforesaid resolution  dated September  26, 1967, had ordered that the  appellant be appointed Professor in the department of Anthropology with effect from October 1, 1967, inter alia stated:           "Every  teacher,   other  than   those   appointed      temporarily for  one year  or less,  shall enter into a      written  contract   with  the  University  and  get  it      executed within one month of the 1015      date of  his joining  duty and  no salary  can be drawn      unless the contract is executed           When a  teacher is  promoted  from  one  grade  to      another he  shall be  treated as  a new entrant in that      grade and  the appointee  in the  new  grade  shall  be      placed on  probation for  a period not exceeding 1 year      and shall be required to execute a fresh contract...           Teachers of  the University  shall  ordinarily  be      appointed in the first instance on probation for a term      not exceeding  two years  and  shall  be  eligible  for      confirmation at  the end of that period, provided their      work is  satisfactory. In  the case  of those  who have      been teachers  before or  have shown exceptional merit,      the Syndicate  may fix  a shorter  period. Teachers  so      confirmed shall  be eligible to hold their appointments      until  they   are  60  years  of  age  subject  to  the      provisions of  sections 7, 8, 9 and 10 of Chapter XXXIX      of Vol. 1 of the University Code......           The appointments  are  subject  to  the  statutes,      ordinances and  regulations,  etc.  of  the  University      authorities that  are current now or may be passed from      time to time in respect of the University teachers".      On October  28, 1967,  the appellant  entered  into  an agreement  with   the  University   as   required   by   the aforementioned conditions  of  service  and  section  24  of Chapter V  of the  Administration Manual  of the University. Clause 10  of the  agreement which  contained  a  reciprocal covenant ran thus :-           "10.  That  the  party  of  the  first  part  will      continue in  the service  of the  University under  the      terms and conditions herein contained.           (a) Provided  always that  the party  of the first      part may  determine this  agreement on  any  day  after      CONFIRMATION by  giving to  the University  a notice in      writing of  his intention  to that  effect at least six      calendar months  before such  day and  if  such  notice      shall be  given this  agreement shall terminate on that      day accordingly.

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         (b) Provided  further that  this agreement  may be      determined  on   any  day  after  confirmation  by  the      Syndicate by  giving the  party of  the  first  part  a      notice without  assigning reasons  in  writing  of  its      intention to  that effect  at least six calendar months      before such  a day  or paying six months salary in lieu      of such notice; and if, such notice is given or payment      made,  this   agreement  shall   terminate   that   day      accordingly and  the party  of the first part shall not      have the  right of  appeal  to  any  other  officer  or      authority against such termination.           (c) Provided  further that  this agreement  may be      determined on  any day  by the  Syndicate if the Senate      shall resolve  to abolish the post held by the party of      the first part." 1016      The   appellant   was   confirmed   as   Professor   of Anthropology with effect from October 1, 1968.      On October  28, 1973, the Syndicate passed a resolution deter mining the aforesaid agreement which the appellant had entered into  with  the  University  on  his  promotion  and appointment as  Professor of Anthropology. Intimation of the determination of  the  agreement  was  communicated  to  the appellant by  registered post  which was  received by him on November 3,  1973.  The  said  communication  was  in  these terms:-           "Under  section   24   of   Chapter   V   of   the      Administration Manual  of the Andhra University and Cl.      (10)  of  the  Agreement  entered  into  on  28-10-1967      between Dr. I.N. Subba Reddi on one part and the Andhra      University on  the other  part, the  said agreement  is      hereby determined.  A cheque  bearing No.  460292 dated      28-10-1973 for  Rs. 9,316/15  P. On  the State  Bank of      India, Waltair, being the salary and dearness allowance      for six  months is  hereby enclosed  as provided for in      the aforesaid S. 24 and Cl. 10(b)".      The appellant  thereupon filed  a suit.  being suit No. 910 of 1973, in the Court of District Munsiff, Visakhapatnam questioning the  validity of  the aforesaid resolution dated October 28,  1973 of  the Syndicate.  In the  said suit,  an ex-parte temporary  injunction was  granted on  November  5, 1973, restraining  the respondents  herein from implementing the resolution  passed by  the Syndicate.  Aggrieved by this injunction, the  respondents filed  an appeal (CMA No. 41 of 1973) which  was dismissed by the Additional District Judge, Viskhapatnam  by   order  dated,   November  28,  1973.  The respondents there upon filed a revision petition to the High Court which by its order dated January 25, 1974, allowed the same and vacated the injunction holding inter alia that only a suit  for damages  and not for declaration and continuance in service lay.      After the  acceptance of  the revision  petition by the High Court,  the appellant  withdrew the  aforesaid suit and filed a writ petition in the High Court under Article 226 of the  Constitution   on  January  29,  1973  challenging  the validity of  the aforesaid  resolution of  the Syndicate and the vires  of section  24 of Chapter V of the Administration Manual. In  that petition,  it was inter alia averred by the appellant that  the action  of the Syndicate terminating his services was  mala fide,  and that  it was with the ulterior object of circumventing the procedure prescribed by sections 9 and  11 of  Chapter XXIX  of the  University Code  and  to camouflage the  punishment of  dismissal visited  on him for the legal  action that  he had  taken  earlier  against  the University that the Syndicate purported to act under section

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24 of  the Administration  Manual and  clause 10(b)  of  the agreement. It  was further  asserted by  the appellant  that section 24  of Chapter  V of  the Administration  Manual was ultra vires  the powers of the Syndicate and clause 10(b) of the agreement which provided for termination of his services without assigning  any reason  was void  being repugnant  to sections 8 to 12 of Chapter XXIX of the University Code. 1017      The  petition   was   vigorously   contested   by   the respondents. While  emphatically denying  that the  impugned action was  mala fide or that it had been taken as a measure of punishment,  they averred  that the  relationship between the appellant and the University which was one of master and servant and was regulated by the contract of service entered into between  the appellant  and  the  University  had  been validly deter  mined in  accordance with  the provisions  of section 24  of Chapter  V of  the Administration  Manual and clause 10(b) of the aforesaid contract of service which were perfectly legal and valid.      In view  of the  importance of the question involved in the writ  petition viz,  whether the  University could  take recourse to  the aforesaid  contract entered into between it and the appellant for terminating the services of the latter without regard  to the  provisions  of  sections  to  12  of Chapter XXIX  of the  University Code and whether section 24 of Chapter  V of  the Administration  Manual was intra vires the powers  of the  Syndicate, a learned Single Judge of the High Court  before whom  the petition was placed for hearing referred  the   same  for  decision  to  a  Division  Bench. Following some  decisions of  this Court, the Division Bench of the  High Court  dismissed the writ petition holding that the impugned  action had  neither been taken as a measure of punishment for  any misconduct  on the part of the appellant nor did  it involve  a breach  of  any  mandatory  statutory obligation or any principle of natural justice; that in view of the fact that the impugned resolution communicated to the appellant was  cumulatively based upon section 24 of Chapter V of  the Administration  Manual which  was intra  vires and clause 10  of the agreement which was valid and binding, the appellant could  not have any legal grievance which could be redressed by  a court  of law  and that no writ lay to quash the order terminating the contract of service.      Mr. Garg,  counsel for  the appellant, has assailed the aforesaid  resolution   of  the  Syndicate  terminating  the services of  the appellant  on three  grounds, viz. (1) that section 24  of Chapter  V of  the Administration  Manual  is ultra vires  the powers conferred on the Syndicate; (2) that the said  section 24  and  clause  10(b)  of  the  aforesaid agreement between  the appellant  and the  University  being inconsistent with  section 7  to 12  of Chapter  XXIX of the University Code  were void  and ineffectual and (3) that the services of  the appellant could not be terminated except on the grounds  mentioned in sections 7 to 10 of the University Code.      We shall  deal with  these contentions  seriatim. For a proper  consideration   of  the   first  contention,  it  is necessary to  notice section  G  24  or  Chapter  V  of  the Administration Manual"  clauses (c) (iii) and (d) of section 19, section  39 (f), section 34 and section 42 of the Andhra University Act (hereinafter referred to as ’the Act’).      Section 24  of Chapter  V of  the Administration Manual runs as follows :-      "24. The  Syndicate may  determine the  services  of  a      teacher after  confirmation on  any day by giving him a      notice WITHOUT assigning reasons in writing of its

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1018      intention to  that effect  at least six calendar months      before such  a day  or paying  him six months salary in      lieu of  such notice. It shall be sufficient service of      a notice  by the  Syndicate, if the notice be signed by      the Registrar or such other person as may be authorised      in this  behalf by the Syndicate and be delivered at or      sent by  registered post  to the address of the teacher      with acknowledgement due".      Clause (d)  of section  19 of  the Act confers power on the Syndicate  to  suspend  or  dismiss  a  teacher  of  the University (subject  to such  ordinances as  may be  made in this behalf)  which obviously implies a power to take action for misconduct.  Clause (c)  (iii) of  section 19 of the Act empowers the Syndicate to fix the emoluments of the teachers of the  University and to define their duties and conditions of service  subject to such statutes as may be prescribed in this behalf  under section 39(f). As explained by this Court is State  of Madhya  Pradesh &  ors. v.  Shardul Singh,  the expression  ’conditions   of  service’   means   all   those conditions which  regulate the holding of a post by a person right from  the time  of his appointment till his retirement and even  beyond it,  in matters  like pension  etc. Section 29(f) of the Act lays down that subject to the provisions of the Act,  the statutes  (which can  be framed  by the Senate which is  the supreme  governing body of the University) may provide for  the classification  and the mode of appointment of the  teachers of  the University.  It does  not say  that statutes can be made laying down the terms and conditions of service of  the teachers  nor does  it put any fetter on the power of the Syndicate to define the terms and conditions of service of  the teachers including the condition relating to termination of  their services  otherwise  than  by  way  of dismissal or  removal. It follows, therefore, that the power conferred by  clause (c) (iii) of section 19 of the Act is a power quite  distinct and apart from the power to suspend or dismiss a  teacher for  misconduct and  includes within  its ambit power  to lay  down  a  condition  relating  to  early termination of  service of  a teacher  without  casting  any aspersion on  him by  giving him  a notice  for a  specified period or on payment to him of salary and allowances in lieu of the  notice although  he may  be eligible  to continue in service upto  a specified  age. Section  34 of  the Act lays down  that   every  salaried  officer  and  teacher  of  the University shall  be appointed  under  a  written  contract. Section 42  of the  Act inter alia empowers the Syndicate to make ordinances  in consultation  with the  Academic Council with regard  to all  matters which  by the  Act  or  by  the statutes may be provided for by the ordinances.      The analysis  of the  aforesaid provisions  of the  Act makes  it   clear  that   the  Syndicate  is  invested  with untrammelled power  to define  the terms  and conditions  of service of the teachers of the University. Now section 24 of Chapter V  of the  Administration Manual being undoubtedly a condition of  service of  the University  teachers,  we  are unable to understand how it is ultra vires the powers of the Syndicate. The  first contention  raised on  behalf  of  the appellant is, therefore, repelled. 1019      Let us  now see  if the  above  quoted  section  24  of Chapter V  of the Administration Manual and clause 10 of the agreement are  void being repugnant to and inconsistent with sections 7  to 12  of Chapter  XXIX of  the University Code. Section  7   of  Chapter  XXIX  of  the  Code  provides  for suspension or  abolition of  any Professorship,  Readership,

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Lecturership or  other teaching  post. Section  8 of Chapter XXIX of  the Code  empowers the  Syndicate  to  suspend  any teacher of  the University  for a maximum period of one year or to  require him  to retire  on sufficient cause shown and after due  investigation. Section  9 of  Chapter XXIX of the Code confers  power on the Syndicate to remove a teacher for misconduct on his part or of breach by him of one or more of the terms of the contract which he has entered into with the University, which,  in the  opinion of  the Syndicate, makes him unfit  to hold  the post.  Section 10 of Chapter XXIX of the Code  invests the  Syndicate with power to terminate the services of  a teacher  on the ground of ill health. Section 11 of  Chapter XXIX of the Code prescribes the procedure for removal of a teacher. It also confers the right of appeal on the teacher  who is  removed from  service or  is suspended. Section 12  of Chapter  XXIX of  the Code  bars a  claim for damages  or   compensation   by   a   teacher   against-whom disciplinary action  is  taken  i.e.  who  is  suspended  or removed from  service under sections 8 and 9 of Chapter XXIX of the Code.      The aforesaid  sections of  the Code have nothing to do with termination  simpliciter of  the services  of a teacher without casting  any aspersion  on him,  which is a distinct and separate  matter and  is provided  for in  section 24 of Chapter V  of the  Administration Manual and clause 10(b) of the aforesaid  contract of service. As such, neither section 24 of  Chapter V  of the  Administration Manual  nor  clause 10(b) of  the agreement can be held to be void on the ground of repugnancy  to sections  7 to  12 of  Chapter XXIX of the University Code.      This takes  us to  the third and last contention raised on  behalf   of  the  appellant  which  is  also  devoid  of substance. The  instant case,  it will be seen, is neither a case of  abolition nor  suspension of a post as contemplated by section  7, nor  of suspension as contemplated by section 8,  nor   of  dismissal   or  removal   for  misconduct   as contemplated by section 8, nor of termination of services on the ground  of ill-health.  It is, in our opinion" a case of termination of  service simpliciter  with out  attaching any stigma which  is  governed  by  the  conditions  of  service specified in  the aforesaid contract of employment which the Syndicate was  empowered to  lay down  under  section  19(c) (iii) of  the Act  and is clearly covered by the decision of this Court in Sirsi Municipality by its President v. Cecelia Kom Francis  Teellis where  one of  us, namely  the  learned Chief Justice  after an  exhaustive review  of the  case law bearing on the matter observed :      "Relationship of  master and servant is governed purely      by contract  of employment.  Any breach  of contract in      such  a  case  is  enforced  by  a  suit  for  wrongful      dismissal and damages. Just as a contract of employment      is not capable of specific performance similarly breach      of contract  of employment  is not capable of finding a      declaratory judgment 1020 of subsistence  of employment.  A  declaration  of  unlawful termination and  restoration to service in such a case of 11 contract of  employment would  be indirectly  an instance of specific performance of contract for personal services. Such a declaration  is not  permissible under the law of Specific Relief Act..  Termination or  dismissal of what is described as a  pure contract of master and servant is not declared to be a  nullity however  wrongful or  illegal it  may be.  The reason is  that dismissal  in breach of contract is remedied by damages."

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    That the  impugned action  is not invalid would also be clear from  a perusal  of another  decision of this Court in Delhi Transport  Undertaking v. Balbir Saran Goel. There the respondent,  who   was  an   employee   of   the   appellant undertaking, established under the Delhi Transport Authority Act, challenged  his demotion  by filing  a  petition  under Article 226 of the Constitutions. After the dismissal of the petition,  the   appellant-undertaking   passed   an   order terminating the services of the respondent stating that they were no  longer required and that one month’s salary in lieu of notice  would be  paid. The  respondent thereupon filed a suit seeking  a declaration  that the order of his dismissal was illegal.  On the questions: (1) whether the respondent’s services  could  be  terminated  under  Regulation  9(b)  by giving one  month’s notice  or pay  in lieu  thereof without complying  with  the  procedure  of  enquiry  prescribed  by Regulation 15(2)-(c)  and (2) whether although the order was made in perfectly harmless and innocuous terms and purported to be  within Regulation  9(b) it  was a  mere camouflage or cloak for inflicting punishment for breach of standing order 17 in  as much  as the  respondent had  approached the  High Court  under   Article  226   of  the  Constitution  without exhausting the departmental remedies, it was held :      "(1) Even  if it be assumed that the law is the same as      would be  applicable to a case governed by Article 311,      it was  difficult to  say  that  the  services  of  the      respondent were  not merely  terminated  in  accordance      with Regulation  9(b) which  governed the conditions of      his  employment.   It  may   be  that  the  motive  for      termination of  his services was the breach of Standing      order 17  i.e. of  filing a  writ petition  in the High      Court   against   the   demotion   without   exhausting      departmental remedies  but the  question of  motive  is      immaterial.  No   charge-sheet  was   preferred   under      Regulation 15  nor was  any enquiry  held in accordance      therewith before  the order  under Regulation  9(b) was      made.           (ii)  As   regards  the   punishment  having  been      inflicted  for   misconduct  the  order  being  a  mere      camouflage, no such question could arise in the present      case. Regulation 9(b) clearly empowered the authorities      to terminate  the services  after  giving  one  month’s      notice for  pay  in  lieu  of  notice.  The  order  was      unequivocally made in terms of that Regulation. Even if      the employers  of the  respondent thought that he was a      cantankerous person and it was not desirable 1021 to retain  him in  service, it was open to them to terminate his services  in terms  of Regulation  9(b) and  it was  not necessary to  dismiss him  by  way  of  punishment  for  mis conduct. If  the employer  chooses to terminate the services in accordance  with clause  (b) of Regulation 9 after giving one month’s  notice or  pay in lieu thereof it cannot amount to termination  of service for misconduct within the meaning of clause  (a). It is only when some punishment is inflicted on the  nature specified  in Regulation  15 for  mis conduct that the  procedure laid  down therein  for an  enquiry etc. becomes applicable."      The decision of the House of Lords in McClelland’s case on which strong reliance is placed by Mr. Garg is not at all helpful to  the appellant. In the case, the dismissal of the plaintiff was on the ground of redundancy of the staff which was not  one of  the grounds  specified  in  the  terms  and conditions  of   service.  In  the  present  case,  no  such difficulty could  arise  as  the  terms  and  conditions  of

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service specified in the contract of employment entered into between the appellant and the University under section 34 of the Act  contained an  express provision  for termination of his services by six month’s notice on either side.      Thus all  the  contentions  raised  on  behalf  of  the appellant having  failed, the  appeal cannot  succeed and is hereby dismissed.  In the  circumstances of  the  case,  the parties are  left to  bear and  pay their  own costs  of the appeal. P.H.P.    Appeal dismissed. 1022