2006 Supreme(SC) 491

2006(5) Supreme 336
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.B. Sinha and P.P. Naolekar, JJ.
V.C., Banaras Hindu University & Ors. — Appellants
versus
Shrikant — Respondent
Civil Appeal No. 4147 of 2003
With
Civil Appeal No. 248 of 2004
Decided on 12-5-2006
Counsel for the Parties :
For the Appearing Parties : Rakesh Dwivedi, Jaideep Gupta, Sr. Advocates, Lakshmi Raman Singh, B.B. Singh, Ms. Vimla Sinha, Chandra Prakash, Alisheh Chaudhary, Gaurav Bhatia, Saad Shervani, Adarsh Upadhyay, Piyush Vats, Ajit Kumar Singh, Ms. Suruchi Aggarwal, Ayushya Kumar, Advocates.

IMPORTANT POINT
1. Although, laying down a provision providing for deemed abandonment from service may be permissible in law, it is not disputed that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of the Constitution of India.
2. When the statutory authority exercise its statutory powers either in ignorance of the procedure prescribed in law or while deciding the matter takes into consideration irrelevant or extraneous matters not germane therefor, he misdirects himself in law. In such an event, an order of the statutory authority must be held to be vitiated in law.

Headnote:SERVICE LAW — Banaras Hindu University Act No. XVI of 1915 — Section 10, 17 and 18 — Termination of service — Absence from duty without express sanction of leave and without permission of Vice-Chancellor — Respondent, appointed as Lecturer in Opthalmology, Institute of Medical Sciences, Banaras Hindu University applied for compensatory leave for going abroad — Respondent and his wife left for United Kingdom without express sanction of leave — Respondent was asked to join his duties by the Registrar of the University by a notice dated 24-3-2000 — Respondent came back to India and submitted his joining report on 21-6-2000 which was not accepted by the Registrar stating that he had abandoned his service from 1-3-2000 — Vice-Chancellor refused to recall his order and stated that the respondent had gone abroad in a pre-planned manner — Procedure laid down for imposition of major penalty had not been followed in the instant case — Respondent had not been proceeded against for commission of any misconduct — Whether in the facts and circumstances of this case, the notification could be invoked against appellant — (No).

       Held : We have noticed hereinbefore that a notification was issued on 25.3.1998. The said notification was purported to have been in terms of a resolution adopted by the Executive Council in its meeting held on August 13-14 & October 12-15, 1997 (E.C.R. No.514, Corrected under E.C.R. No.577 of February 28 - March 1 & 2, 1998). The resolution of the Executive Council had not been produced before us. However, a bare perusal of the said purported notification dated 25.3.1998 would clearly show that the Executive Council had in the said meeting been only considering the question of taking disciplinary action against the employees for having gone abroad without the permission or without the sanctioned leave and those who have overstayed without the prior approval of the University. Although, leaving the institution without the prior permission of the Vice Chancellor would fall within the purview of misconduct; availing of leave undisputedly would be governed by the leave Rules framed by the University. Proceeding on leave without the same being sanctioned or overstaying after the period of sanctioned leave is over, would undisputedly come within the purview of the term misconduct. It is, however, true that only because the action on the part of the employee to avail leave without any prior sanction thereof or overstay despite expiry of the period of leave, would amount to misconduct, the statutory authorities would not be denuded with power to make an appropriate statute that in certain situation the employee would be deemed to have abandoned his services. However, such a provision could not be laid down by an executive direction. Matter relating to cessation of employment is governed statute and ordinance. Any matter touching the said subject, thus, must be provided for by a subordinate legislation, i.e., either by framing a statute or an Ordinance.(Para 17)

       We, therefore, are required only to consider as to whether the notification dated 25.3.1998 is attracted in this case. The said notification was issued only by way of guidelines. It is sub-divided into two parts; whereas the first part provides for consequences of overstay without permission for more than 45 days at different points of time, the second part relates to the employees who have overstayed without permission for more than 45 days from the date of issue of the University resolution. Only in regard to the second part, it was stated that the services of such employees "would be abandoned as per the existing rules".(Para 18)

       We have noticed hereinbefore that the Statute and the Ordinance not only deal with the manner in which the recruitment of a faculty member is to be carried out, but also lay down the terms and conditions of services, the manner, in which the proceeding for commission of misconduct by a delinquent officer, was to be initiated and the punishments imposed. It was, therefore, improper on the part of the authorities including the Executive Council to create a new punishment or create a new exit door for the employees to throw him out of the services of the University. It is in that sense the purported circulars issued by the Registrar in terms of the purported resolutions adopted in the meetings of the Executive Council or otherwise must be held to be ultra vires(Para 21)

       The Statute and the Ordinance postulate that an order of termination of services could be passed only by the Executive Council and that too in the event two-third of the Members were present and voted in support thereof. Therefore, the Vice Chancellor had no say in the matter. He was merely a member of the Executive Council. He, thus, could not have initiated any proceeding and imposed any punishment on the Respondent. We furthermore fail to appreciate as to why, despite the High Courts order, the Executive Council could not dispose of the matter quickly. Why the matter had not been brought on the agenda by the Vice Chancellor at the first opportune moment and why the matter had to be adjourned again and again has not been explained. It may be that when the matter was brought on the agenda of the Executive Council on 8.9.2003, it purported to have approved the orders of the Vice Chancellor that the Respondent would be deemed to have abandoned his service with effect from 1.3.2000, but the same did not receive the seal of finality as the minutes of the meeting had not been approved.(Paras 37 & 38)

       As the initial order passed by the Vice Chancellor was wholly without jurisdiction, the same was a nullity and, thus, the purported approval thereof, by the Executive Council would not cure the defect. (Para 45)

       For the reasons abovementioned, we do not find any merit in the appeal filed by the University. However, so far as appeal of the Respondent is concerned, although the conduct of the University is deplorable having regard to the fact that the Respondent has suffered a lot and has not been allowed to join his duties for a long time and keeping in view the facts and circumstances of this case, we are of the opinion that his back wages should be restricted to 75 . The Respondent shall also be entitled to costs of the appeal. Counsels fee is assessed at Rs.10,000/-.(Para 67)