1998 Supreme(SC) 996

1998(7) Supreme 361
Supreme Court of India
(From Patna High Court)
Dr. A.S. Anand & S. Rajendra Babu, JJ.
Basudeo Tiwary -Appellant
versus
Sido Kanhu University & Ors. -Respondents
Civil Appeal No. 4858 of 1998
(@ Special Leave Petition (C) No. 5561               of 1996)
Decided on 17-9-1998
Counsel for the Parties :
For the Appellant : Sudhir Chandra, Sr. Advocate and Jayant Bhushan, Advocate.
For the Respondents : Akhilesh Kumar Pandey, Advocate.

Important Point
Under Section 35(3) of Bihar Universities Act, before terminating services of a lecturer on the ground that an appointment had been made contrary to the Act, statute, rule or regulation etc. the Vice Chan­cellor has to give an opportunity of being heard must be given.

Headnote:Service Law-Bihar Universities Act-Section 35(3)-Teaching staff -Termination on ground appointment as contrary to statute/rules or regulation-Procedure for-Appel­lant originally appointed as lec­turer in Private college-College took over by university - Appellant’s name did not figure in list given by principal at time of take over-Representation by appellant-Con­sequent enquiry and report of sub-committee of university of Syndicate-Syndicate reappointed appel­lant-Appellant’s representation for regularisation of service - Vice- Chancellor terminating his service on ground that Syndicate had no power to make appointment of lecturer and appointment was not lawful-No opportunity of hear­ing given to appellant-In Section 35(3) there is an implied requirement of hearing for arriving at a conclusion that appointment was contrary to Act, statute, rule or regulation etc.-Impugned order terminating services of appellant cannot be sustained.

       Held : 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 justice is also a re­quirement of Article 14, for, natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled 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. In order to impose procedural safeguards, this Court has read the requirement of natural justice in many situations when the statute is silent on this point. The approach of this Court in this regard is that ommission 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 is affected adversely. The justification for reading such a requirement is that the Court merely supplies omission of the legislature. (Paras 9 & 10)

       Section 35(3) of the Bihar Universities Act 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 contrary 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 made, 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 precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry the person whose appointment is under enquiry 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 conclusion would not be just, fair or reasonable 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 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. (Para 12)

       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 services of the appellant cannot be sustained. (Para 13)

       Held further : The appellant has since demised during the pendency of these proceedings, 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 invalid. 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. (Para 14)