Holding

The termination order was ultra vires as the proper statutory procedure was not followed and the 1998 notification could not be used to deem abandonment, rendering the order bad in law, though back wages were limited to 75% of the claim.

Summary

Dr. Shrikant, a lecturer at Banaras Hindu University, applied for leave to accompany his wife to the UK and attend a conference, receiving departmental recommendation but not the Vice Chancellor's sanction. He travelled abroad without explicit permission, later returned and submitted a joining report, which the University rejected, deeming his service abandoned from 1 March 2000 and terminating his employment. The University relied on a 1998 notification to justify abandonment, while the Vice Chancellor acted without jurisdiction, as termination under the BHU Act requires Executive Council approval and proper disciplinary procedure. The Supreme Court held that the 1998 notification could not create a new misconduct or legal fiction of abandonment and that the procedural requirements for a major penalty were not complied with, rendering the termination order ultra vires. Consequently, the Court dismissed the University's appeal, allowed the respondent's appeal in part, and awarded back wages limited to 75% of the claim.

Issues considered

Whether the Notification dated 25-03-1998 can be invoked to deem the lecturer's service abandoned.
Whether the Vice Chancellor had jurisdiction to terminate the lecturer's employment.
Whether the procedure prescribed under Sections 17 and 18 of the Banaras Hindu University Act for imposing a major penalty was complied with.
Whether the termination order is valid under the statutory framework of the BHU Act and Ordinances.
Whether the lecturer is entitled to back wages and, if so, the quantum thereof.

Subjects

service lawabandonment of servicemisconductprocedural fairnessBanaras Hindu University Actnatural justiceArticle 14Article 311back wagesdisciplinary proceedings

Judgment

A V.C. BANARAS HINDU UNIVERSITY & ORS.
v.
SHRIKANT

MAY 12, 2006

B [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Service Law:

Banaras Hindu University Act, 1915 : Sections JO, 17and 18.
c
Abandonment of service-Misconduct--Proceeding abroad on Leave
without prior sanction/permission of the competent authority--University
Lecturer applied for sanction of leave as he desired to assist his wife in
joining her fellowship in the United Kingdom as also to attend an academic
meeting in Germany-- Recommendations were made and forwarded by the
D Director ofthe Institute being the Head ofthe Department and the Competent
Authority--The purpose of the lecturer's visit had been shown as "Personal
& Scientific "-The lecturer left for the United Kingdom without express
sanction of leave and without the permission of the Vice Chancellor--The
lecturer was asked to join his duties by the Registrar of the University by
E a notice for the alleged acts of misconduct-The lecturer sent a letter
intimating the Registrar that since air reservation was not available he would
report for duty by a certain date-The lecturer came back to India and
submilled his joining report on that date, which was not accepted by the
Registrar stating that he had abandoned his service--The Vice Chancellor
F refused to recall his order-On challenge, the High Court granted a
conditional stay order of the termination-The lecturer was allowed to join
duty but was not permitted to claim his salary till the writ petition was
decided-The High Court ultimately held that the order of termination was
bad in law but denied the respondent his back wages--Correctness of-Held:
The procedure laid down for imposition of major penalty had not been
G followed in the instant case-The lecturer, thus, had not been proceeded
against for commission of any misconduct-The University was not sure as
to whether the lecturer has committed a misconduct or by leaving India
without obtaining leave, he would be deemed to have abandoned his
service- -The lee lurer's leave had been sanctioned by the Director being the
H Head oflhe Department in lerms of the leave rules--Back wages to the exient
536
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT 537

of 75% granted to the lecturer. A
The respondent was appointed as a Lecturer in the appellant-
University. The respondent applied for sanction of leave from 1.3.2000
to 30.6.2000 as he desired to assist his wife in joining her fellowship in
· the United Kingdom as also to attend an academic meeting in Germany.
Recommendations were made and forwarded on 21.2.2000 by the B
Director of the Institute being the Head of the Department and the
Competent Authority. The purpose of the respondent's visit had been
shown as "Personal & Scientific". The respondent left for the United
Kingdom without express sanction of leave and without the permission
of the Vice Chancellor. The respondent was asked to join his duties by C
the Registrar of the University by a notice dated 24.3.2000 for the
alleged acts of misconduct. The respondent sent a letter intimating the
Registrar that since air reservation was not available before 19.6.2000
he would report for duty by 21.6.2000. The 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 D
from 1.3.2000. The Vice Chancellor refused to recall his order.

On challenge, the High Court granted a conditional stay order of
the termination and further directed that the respondent might be
allowed to join his duties but he would not claim any salary till the writ E
petition was decided. The High Court dismissed the writ petition on the
ground that the respondent had an alternative remedy.

The respondent made a representation before the Executive Council
which adopted a resolution on 8.1.2003 although the same was confirmed
later on. The High Court held that the order of termination was bad F
in law but denied the respondent his back wages. Hence the appeals.

The following question arose before the Court:

Whether the Notification dated 25.3.1998 can be invoked against
the respondent? G

Disposing the appeals, the Court

HELD: 1. Admittedly, the procedure laid down for imposition of
major penalty had not been followed in the instant case. The respondent, H
538 SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A thus, had not been proceeded against for commission of any misconduct.
(548-AJ

2. A bare perusal of the Notification dated 25.3.1998 would clearly

B
show that the Executive Council had 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

c 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
D 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 by statute and ordinance. Any matter touching
the said subject, thus, must be provided for by a subordinate legislation,
E i.e., either by framing a statute or an Ordinance. There cannot be any
doubt, whatsoever, that a statute could be made in the manner laid
down under the Banaras Hindu University Act, 1915. From the
Notification dated 25.3.1998, it appears that by reason thereof, the
Executive Council did not propose to make any amendment to the existing
F ordinance nor intended to lay down any new law. (548-F-H, 549-A-CJ

3.1. The Notification dated 25.3.1998 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
G 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". (549-E, FJ

3.2. The Executive Council, the Vice Chancellor or any other
H
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT 539

authority, who are creatures of Statutes, must act within the four- A
corners thereof. They were also required to follow the procedure laid
down for initiation of a disciplinary proceeding against an employee.
[549-H, 550-A)

4. Where a matter is covered by one or the other clauses contained
in Sections 17 or 18 of the Act any modification/amendment/substitution B
thereof was required to be carried out strictly in the manner laid down
thereunder. 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 C
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 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 D
must be held to be ultra vires. [550-A-D)

State of Madhya Pradesh v. M/s. G.S. Dall & Flour Mills, (1992)
Supp. 1 SCC 150 and DDA v. Joginder S. Monga, [2004) 2 SCC 297,
referred to.
E
5. Even otherwise, the said purported Notification dated 25.3.1998
does not and/or cannot create a new misconduct and/or provide for a
legal fiction providing that the employee would be deemed to have
abandoned his service. The said Notification was issued for laying down
certain guidelines and, thus, by reason thereof no independent misconduct F
could be created. The purpose of issuing the said circular evidently was
to lay down broad guidelines in regard to the quantum of punishment
which should be imposed, as would be evident from the fact that Section
(A) thereof deals with the cases of those employees who had gone abroad
without prior permission (which itself is a misconduct) and overstaying
the leave for more than 45 days. The quantum of punishment has been G
specified for commission of misconduct for the first, the second, the
third and the fourth time. (551-B-DJ

6. Section (B) of the Notification deals with the cases of those
employees, who have overstayed abroad without prior permission for, H
540 SUPREME COURT REPORTS [2006) SUPP. 2 S.C.R.

A more than 45 days from the date of issue of the notice by the University,
their services would be treated to be abandoned as per the existing rules.
The said Notification is vague and obscure. It does not take into
consideration the situation where a person may leave the campus
without obtaining leave. If a person commits the same misconduct by
....
staying within India although no leave has been obtained he would not
B come within the purview thereof but only if he goes abroad and
overstays, the circular letter would come into play, which would mean
that for initial stay he had the requisite permission and only in case of
overstay he would be held to have not obtained any prior permission,
and only in such an event, he would come within the purview of the said
c provision. In terms of the said Notification no legal fiction is created.
Even otherwise, no legal fiction in law can be created by an administrative
order. The circular letter states that the services of such employees
would be abandoned as per existing rules, which would mean that there
existed provisions in the rules laying down the condition as to when a
D person would be deemed to have abandoned the services. Admittedly,
no such rule exists. (551-D-HJ

7. It is not disputed that ex-post facto permission could also have
been granted. Moreover, the office memo does not in any way deal with
the respondent's contention that he should have been granted leave. It
E is not known why the respondent's application for grant of leave had
not been favourably considered by the Vice Chancellor. The Vice
Chancellor clearly framed an opinion that the respondent has not
obeyed his directions and he had not seriously taken note of his order.
The notice, thus, speaks of misconduct. (553-F-HJ
F
8. 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,
G could not have initiated any proceeding and imposed any punishment
on the respondent. (555-E, Fl

9. It is not possible to appreciate as to why, despite the High
Court's order, the Executive Council could not dispose of the matter
H quickly. Why the matter had not been brought on the agenda by the
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT 541

Vice Chancellor at the first opportune moment and why the matter had A
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,
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. [555-F-H, 556-A]
B

IO. Moreover, on a bare perusal of the impugned order, it would
appear that the Vice Chancellor of the University did not refer to
the provisions of the Notifications issued from time to time which
would clearly go to show that the University was not sure as to C
whether the respondent has committed a misconduct or by leaving India
without obtaining leave, he would be deemed to have abandoned his
service. [556-A, BJ

11.1. Although laying down a provision providing for deemed D
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 oflndia. If the
action taken by the authority is found to be illogical in nature and,
therefore, violative of Article 14 of the Constitution the same cannot be
sustained. Statutory authority m:ly pass an order which may otherwise E
be bona fide, but the same cannot be exercised in an unfair or
unreasonable manner. The Respondent has shown before this Court
that his leave had been sanctioned by the Director being the Head of
the Department in terms of the leave rules. It was the Director/Head
of the Department who could sanction the leave. Even the matter p
relating to grant of permission for his going abroad had been
recommended by the Director. The respondent states and it had not
been controverted that some other doctor was given the charge of his
duties. It has been indicated sufficiently that the Vice Chancellor posed
unto himself a wrong question. A wrong question leads to a wrong
answer. When the statutory authority exercises its statutory powers G
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 mis.directs himself in law. In such an event, an
order of the statutory authority must be held to be vitiated in law. It
suffers from an error of law. [556-C, D, E, F) H
542 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A 11.2. Such an error of law is capable of being rectified by judicial
review. Reasonableness in the order and/or fairness in the procedure
indisputably can also be gone into by the writ Court. (556-G I

K.1. Shepherdv. Union ofIndia, AIR (1988) SC 686,Assam Sillimanite
Ltd. v. Union of India, (199013 SCC 182; H.L. Trehan v. Union of India,
B AIR (1989) SC 568; D. K. Yadav v. JllfA Industries ltd., (1993] 3 SCC
259 and Scooters India Ltd. v. M. Mohammad Yaqub, [2001) l SCC 611,
relied on.

Jai Shanker v. State ofRajasthan, AIR (1966) SC 492 and Deokinandan
C Prasadv. State of Bihar, AIR (1971) SC 1409; Uptrvn India Ltd. v. Shammi
Bhan, (1998) 6 SCC 538; Punjab & Sind Bank v. Sakkatlar Singh, (2001)
1 SCC 214; Lakshmi Precision Screws Ltd. v. Ram Bhagat, (2001 ( 6 SCC
552 and Viveka Nand Sethi v. Chairman, J&K Bank ltd., [20051 5 SCC
337, referred to.

D Aligarh Muslim University v. Mansoor Ali Khan, 120001 7 SCC 529,
held inapplicable.

Sobhana Das Gupta v. State of Bihar, (1974) PLJR 382 (Pat),
approved
E
12. 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.
(559-H, 560-AJ

F 13. Although the conduct of the University is deplorable having
regard to the fact 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, his back wages should be restricted to
75%. (564-E, F)
G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4147 of
2003.

From the Judgment and Order dated 25.3.2003 of the High Court of
Judicature at Allahabad in C.M .W.P. No. 44540/200 I.
H
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT [SINHA, J.] 543

Rakesh Dwivedi, Jaideep Gupta, Sr. ad vs., Lakshmi Raman Singh, B.B. A
Singh, Ms. Vimla Sinha, Chandra Prakash, Alisheh Chaudhary, Gaurav
Bhatia, Saad Shervani, Adarsh Upadhyay, Piyush Vats, Ajit Kumar Singh,
Ms. Suruchi Aggarwal, Ayushya Kumar, Advs., with them for the appearing
parties.

The Judgment of the Court was delivered by
B

S.B. SINHA, J. : Banaras Hindu University was constituted under the
Banaras Hindu University Act No. XVI of 1915. ('the Act'). The Act
contains constitution of various bodies functioning thereunder. Section IO
of the Act, inter alia, provides for constitution of an Executive Council as c
an executive body to be in-charge of the management and administration of
the revenue and property of the University and conduct of all administrative
affairs thereof, not otherwise provided for.

Section 17 of the Act lays down the mode and manner in which the
Statutes of the University are to be framed subject to the provisions of the
D
Act which includes all appointments, powers, duties and affairs of the
University. Section 18 of the Act provides for ordinance making power in
respect of the matters enumerated thereunder, which would be subject to the
provisions of Section under the Statute.
E
Dr. Shrikant, the Respondent herein, was appointed as Lecturer in
Ophthalmology, Institute of Medical Sciences, Banaras Hindu University,
Varanasi. His wife was also employed in the said University. She applied
for and was awarded a Commonwealth Fellowship in United Kingdom with
effect from 1.3 .2000 to 28.2.200 I. For this purpose, she made an application
F
for sanction of substantial leave. The Respondent desired to assist his wife
in joining her fellowship as also to attend the Retina meeting from 7th
to 9th April, 2000 at Frankfurt, Germany as well as the Annual Congress
of Royal College of Ophthalmology at Harrowgate, United Kingdom from
23-24th May, 2000. He, therefore, applied for the following categories of
leave : G

"(i) Compensatory leave 1.3.2000 to 30.4.2000 (i.e. Leave in lieu
of duties performed on off-days, holidays and vacations)

(ii) Summer vacation leave - 1.5.2000 to 9.6.2000 H
544 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A (iii) Compensatory leave 10.6.2000 to 30.6.2000 (i.e. Leave in
lieu of duties performed on off-days, holidays and vacations)"

Recommendations were made and forwarded on 21.2.2000 by the
Director of the Institute being the Head of the Department, who was the only
competent authority under Ordinance No. 43 E of the Ordinance of the
B University with the following endorsements:

"(i) the information given above has been checked from the
document/records and found correct.

c (ii) The examination, teaching and other allied works of the
department will not suffer and leave is recommended."

The purpose of the Respondent's visit had been shown as "Personal &
Scientific". Charge was handed over by the Respondent to Dr. O.P. Maurya.
The application filed by the wife of the Respondent was sanctioned on
D
28.2.2000. Respondent and his wife left for United Kingdom without
express sanction of leave and without the permission of the Vice Chancellor.
The Respondent was asked to join his duties by the Registrar of the
University by a notice dated 24.3.2000 with a further direction to show cause
as to why action be not taken against him for his alleged acts of misconduct.
E According to the Respondent, he received the said letter only on or about
31.3.2000. He replied thereto on 12.4.2000. However, the University by an
order dated 18.4.2000 asked the Respondent to submit his reply again by
5.5.2000 failing which he would be deemed to have abandoned his service
...
with effect from 1.3 .2000. By another Office Memo dated 4.5.2000, the
Respondent was asked to join his duties by 17 .5 .2000, inter alia, on the
F
premise that his earlier reply had not been found to be satisfactory. It was
stated therein that he would be deemed to have abandoned his services with
effect from 1.3 .2000 if he does not respond to the said notice, inter alia, on
the premise that the Respondent had failed to comply with the orders
requiring him to report back to his post, the service of the Respondent was
G tenninated by an order dated 3.5.2000 passed by the Vice Chancellor of
the University with effect from 1.3.2000. An office memo was prepared in
relation thereto on or about 20/22.5.2000, which was received by the
Respondent on 31.5.2000. The Respondent sent a letter intimating the
Registrar that on account of peak ~ummer season, Air reservation was not
H available before I9.6.2000 and he would report for duty by 21.6.2000. The
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT [SINHA, J.] 545

Respondent came back to India and submitted his joining report on A
21.6.2000, which was not accepted by the Registrar stating that he had
abandoned his service from 1.3 .2000 and the Institute had already taken a
decision in that behalf.

The Respondent filed a writ petition before the High Court of Allahabad,
which was disposed of by an order dated 14. 7.2000 directing the Vice
B
Chancellor of the University to consider the said representation sympathetically
and for a period of six weeks the impugned order dated 20/22.5.2000 was
stayed. Pursuant to and in furtherance of the said direction, the Respondent
filed a representation explaining the circumstances under which he had to
remain absent from his duties. He was given a personal hearing. However, c
by an order dated 7 .8.2000, the Vice Chancellor refused to recall his order
and opined that the Respondent had gone abroad in a pre-planned manner..
A second writ petition was filed by the Respondent assailing the said order
dated 7 .8.2000 and 20/22.5.2000. An interim order was passed therein on
31.8.2000 by the High Court granting a conditional stay of the order of
D
termination directing that the Respondent may be allowed to join his duties
but he would not claim any salary till the writ petition was decided. The said
writ petition was dismissed by an order dated 15.2.2001 on the premise that
the Respondent can avail an alternative remedy by making a representation
to the Executive Council of the University. The Respondent filed a
representation pursuant thereto before the Executive Council on 15 .3 .200 I. E
However, the matter was not placed before the Executive Council for a lollg
time and ultimately he filed a Contempt Petition.

It is not in dispute that the Executive Council adopted a resolution on
8. f.2003 although the same was confirmed later on. F
By reason of the impugned judgment, the High Court allowed the writ
petition in part directing that the order of termination of the Respondent was
bad in law but denied him the back wages. Both the parties are, thus, before
us.
G
Before we advert to the rival contentions raised before us, we may
notice some of the notifications issued by the Executive Council of the
University. The Executive Council purported to be taking note of the
rampant practice by the faculty members availing leave including leave for
going abroad without prior sanction/permission of the competent authority, H
546 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A in violation of the provisions of the leave rules and instructions issued from
time to time took a decision that the Head of the Department should not allow
the faculty Members to avail leave without prior sanction and permission of
the Vice Chancellor irrespective of the nature ofleave applied for (including
vacations), failing which the same would be considered as "misconduct" and
action shall be initiated as per rules.
B
Yet again the Executive Council considered the question of taking
disciplinary action against the employees for having gone abroad without the
permission/sanctioned leave and for taking action against those who have
overstayed without the prior approval and without the prior permission of
c the University. In order to curb the said practice, the University decided that
services of those employees, who overstayed without prior permission for
more than 45 days from the date of issue of the notice by the University,
would be "abandoned as per existing rules" (sic for deemed to be abandoned).

Mr. Dwivedi, learned counsel appearing on behalf of the Appellant
D submitted that the University, having regard to the provisions contained in
Section 10 as also the Ordinance making power, could have passed an
execution instruction creating a legal fiction that any member of faculty who
wants to go abroad without the permission of the Vice Chancellor or without
obtaining leave would be deemed to have abandoned his service. It was
E further submitted that having regard to the fact that the High Court had
directed the Executive Council to dispose of the Respondent's representation
which having been done by resolution dated 9.1.2003 and the same having
been confirmed on 23.3.2003 and the same having not been challenged by
the writ petitioners, the impugned judgment cannot be sus~ned. It was next
F contended that the High Court admittedly proceeded on the basis that the
Respondent is guilty of misconduct and in that view of the matter, no
direction for his reinstatement in services without back wages could have
been issued and, therefore, it was necessary for it to arrive at a finding that
the punishment awarded by the University was shockingly disproportionate.
In any event, the High Court should have remitted the matter back to the
G disciplinary authority for imposing appropriate punishment on the Respondent.

Mr. Jaideep Gupta, learned senior counsel appearing for the Respondent,
on the other hand, submitted that the University admittedly did not proceed
on the basis that the Respondent committed an act of misconduct. The
H qu.:stion, according to Mr. Gupta, on the aforementioned prernbe is as to
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT [SINHA, J.] 547

whether the circulars dated 5/10, 1990 and 25.03.1998 on the basis whereof A
the Respondent has been held to have abandoned his services are valid in
law and whether the post-decisional hearing given to the Respondent
pursuant to the direction of the Court can be said to be fair and reasonable.

According to the learned counsel, by reason of the impugned circulars,
the Vice Chancellor had not been conferred with the power t9 declare the
B
services of an employee of the University have been abandoned. The
circulars are inv<ilid beyond the Statute making power under the Act. Even
if it be held that the said circulars were valid in law the principles of natural
justice were required to be complied with. Determination of the matter fairly
and in good faith was furthermore a pre-condition for exercise of such power; c
but as would appear from the fact of the present case, the Respondent cannot
be said to have been fairly dealt with by the statutory authorities.

The University is a creature of the said Act. It can make statutes and
ordinances by way of subordinate legislation to deal with the subjects
D
enumerated therein. Statute 20 provides for the "Penalties and Disciplinary
Authorities". It covers minor and major penalties. Statute 21 lays down
power upon the authorities to impose major penalties. In terms of Statute
21.1, the Executive Council is competent to impose any of the penalties
specified in Rule 20 on an employee. Statute 22 directs a disciplinary
authority to institute disciplinary proceedings against any employee on E
whom the disciplinary authority was competent to impose under those rules;
Statute 23 lays down the procedure for imposing penalties. Statute 23.1
provides that "no order imposing any of the penalties specified in clauses
(v) to (ix) of rule 20 shall be made except after an enquiry held as may be
in the manner provided in the said rule and rule 24. Statute 31 provides that F
for pressing allegations of misconduct against a teacher, he may be placed
under suspension. However, Clause (b) of Statute 31 provides
"Notwithstanding anything contained in the terms of his contract or service
or of his appointment, the Executive council shall be entitled to remove a
teacher on the ground of misconduct".
G
Ordinance I 0.1 provides as under:

"IO. I. Removal of employees of the University shall be regulated
as per Statute 31 for teaching staff and Statute 32 for all employees
of the University other than teachers." H
548 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Admittedly, the procedure laid down for imposition of major penalty
had not been followed in the instant case. The Respondent, thus, had not
been proceeded against for commission of any misconduct. The sole
question, which, therefore, arises is as to whether in the facts and circumstances
of this case, the notification could be invoked against the Respondent.

B Although in the application for grant of special leave to appeal, it is
stated that various circulars/letters were issued upon adopting resolutions by
the Executive Council but before us only two notifications have been
produced. The first one was issued on 5-10/9/1990 whereby and whereunder
the existing Clause of 10.5 of the Ordinance stood amended in the following
c terms:

"I 0.5. Whenever a teaching!Non-teaching employee fails to
return to the University within forty five days of the expiry ofleave
duly granted to him, his services shall be deemed to have been
abandoned by him from the date the leave expires.
D
Provided that the Executive Council on good cause being shown by
the concerned employee may waive the abandonment on such terms
as the Council may decide."

E 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
F 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
G 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
H come within the purview of the term 'misconduct'. It is, however, true that
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT [SINHA, J.] 549

only because the action on the part of the employee to avail leave without A
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
B
· touching the said subject, thus, must be provided for by a subordinate
legislation, i.e., either by framing a statute or an Ordinance. There cannot
be any doubt whatsoever that a statute could only be made in the manner
laid down under the Act. From the notification dated 25.3.1998, it appears
that by reason thereof, the Executive Council did not propose to make any c
amendment to the existing ordinance nor intended to lay down any new law.
Those matters, which are enumerated in Sections 17 and 18 of the Act, could
be dealt with only in the manner laid down thereunder. It is not disputed
that the matters relating to terms and conditions of services, as also
disciplinary action, are governed by the statute/Ordinance. In fact, no
D
provision relating to abandonment of service has been inserted in the
.ordinance as had been done by way of Clause 10.5 in terms of notification
dated 5-10/September 1990. It, however, stands admitted that the said
ordinance is not attracted in the instant case.

We, therefore, are required only to consider as to whether the notification E
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 F
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".

The expression 'existing rules' indisputably would mean the procedure
laid down und~r the rules, i.e., in terms of the provisions of the Statute or G
Ordinance, which as indicated hereinbefore lay down matters relating to
initiation of disciplinary action against the employees.

The Executive Council, the Vice Chancellor or any other authority, who
are creatures of Statutes, must act within the four-corners thereof. They were H
550 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A also required to follow the procedure laid down for initiation of a disciplinary
proceeding against an employee.

Where a matter is covered by one or other clauses contained in Section
17 or 18 of the Act any modification/amendment/substitution thereof was
required to be carried out strictly in the manner laid down thereunder. We
B 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
c 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
D vires. It will bear repetition to state what can be the subject matters of the
executive instructions issued under Section l 0 of the Act must be those in
respect whereof no specific provision exists in the Act, e.g., Sections 17 and
18 of the Act.

In State of Madhya Pradesh & Anr. v. Mis. G.S. Dall & Flour Mills,
E
[I 992] Supp. I SCC 150, a three-judge Bench of this Court opined:-

" .. .The contention that "instructions" could not override the effect
of the statutory notification was repelled by the court on the ground
that the validity and effectiveness of the instructions can be
F supported by reference to Article 162 of the Constitution as filling
up a lack of guidelines in the notification."

In DDA and Ors. v. Joginder S. Monga and Ors., [2004] 2 SCC 297,
this Court categorically held:
G
"It is not a case where a conflict has arisen betv.;een a statute
or a statutory rule on the one hand and an executive instruction, on
the other. Only in a case where a conflict arises between a statute
and an executive instruction. indisputably, the former will prevail
over the latter."
H
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT [SINHA, J.) 551

It was further noticed: A
"Executive instructions can supplement a statute or cover areas
to which the statute does not extend. But they cannot run contrary
to statutory provisions or whittle down their effect."

Even otherwise, the said purported notification dated 25.3.1998 does
B
not and/or cannot create a new.misconduct and/or provide for a legal fiction
providing that the employee would be deemed to have abandoned his service.
The said notification was issued for laying down certain guidelines and, thus,
by reason thereof no independent misconduct could be created. The purpose
for issuing the said circular evidently was to lay down broad guidelines in c
regard to the quantum of punishment which should be imposed, as would
be evident from the fact that Section (A) thereof deals with the cases of those
employees who had gone abroad without prior permission (which itself is
a misconduct) and overstaying the leave for more than 45 days. The quantum
of punishment has been specified for commission of misconduct for the first, D
the second, the third and the fourth time.

Section (B) thereof deals with the cases of those employees, who have
overstayed abroad without prior permission for more than 45 days from the
date of issue of the notice by the University, their services would be treated
E
to be abandoned as per the existing rules. The said notification is vague and
obscure. It does not take into consideration the situation where a person may
leave the campus without obtaining leave. If a person commits the same
misconduct by staying within India, although no leave has been obtained,
he would not come within the purview thereof but only if he goes abroad
and overstays, the circular letter would come into play, which would mean F
that for initial stay he had the requisite permission and only in case of
overstay he would be held to have not obtained any prior permission, and
only in such an event, he would come within the purview of the said
provision. In terms of the said notification no legal fiction is created. Even
otherwise, no legal fiction in law can be created by an administrative order. G
The circular letter states that the services of such employees would be
abandoned as per existing rules, which would mean that there existed
provisions in the rules laying down the condition as to when a person
would be deemed to have abandoned the services. Admittedly, no such rule
exists. H
552 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Section (A) of the said notification, as noticed hereinbefore, speaks of
imposition of punishment which exjacie would mean imposition of
punishment upon following the existing rules. Section (B) of the said
circular cannot, thus, be given different meaning particularly when it speaks
of procedure laid down as per the existing rules.

B In any view of the matter in terms of the said notification dated
25.3.1998, no authority has been conferred upon the Vice Chancellor to take
such a decision. Significantly, even in the office orders dated 30/3 l. 7.1997,
24.3.2000 issued to the Respondent, it was clearly stated that the Respondent
had committed a misconduct by violating the University Rules. By reason
c of the said notices, the Respondent had been asked to show cause as to why
action should not been taken against him for his alleged acts of misconduct.
The Respondent in response to the said notices submitted his reply which
.might or might not have been accepted, but by reason thereof, the Vice
Chancellor of the University could not have taken a different stand while
issuing office memo dated 18.4.2000 so as to say that 'he would be deemed
D
to have abandoned his services w.e.f. 1.3.2000.

It is significant to note that a copy of the said letter was forwarded to
the Respondent at the address of his wife. According to the Respondent, he
did not receive the letter before 31.5.2000 but we are not concerned
E therewith.

Yet again, the Vice Chancellor, by office memo dated 4.5.2000,
stated :

"AND WHEREAS, the aforesaid Dr. Shri Kant in the above
F
mentioned communication finally prays for submission to avail
summer vacation and assures to join immediately thereafter.

AND WHEREAS, all the above facts show that the aforesaid
Dr. Shri Kant has admittedly unauthorisedly proceeded on leave
G without any sanction and also without permission of the competent
authority, which is against the University rules and directives issued
by the University to regulate foreign visits.

AND WHEREAS the aforesaid Dr. Shri Kant has not seriously
H taken note of my earlier order and failed to resume duty in Institute
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT [SINHA, J.] 553

of Medical Sciences, Banaras Hindu University till the date. A

NOW, THEREFORE, I, Y.C. Simhadri, Vice Chancellor,
Banaras Hindu University, after considering the entire matter in
details and on merit along with the reply of the aforesaid Dr. Shri
.. Kant, Reader, Department of Ophthalmology, Banaras Hindu
University dated 12.4.2000, hereby pass the following orders:
B

(A) That the aforesaid Dr. Shri Kant be clearly informed that
his explanation received vide letter dated 12.4.2000, has
been found highly unsatisfactory.
c
(B) That he be given the last and final opportunity to resume
his duties in Institute of Medical Sciences, BHU on or
before 17th May, 2000. This is notwithstanding the fact
that my earlier orders dated 23.3.2000 directing him to
report for duty immediately, have not been complied by
him.
D

(C) That he be further informed that in case he does not
report for duty on or before 17th May, 2000, it would
be presumed that he is no more interested in the University
service and his services shall be deemed to have been E
abandoned by him with effect from !st March, 2000
without any further notice in the matter."

In the said notice evidently the Vice Chancellor was not correct when
he stated that the Respondent had admittedly proceeded on leave F
unauthorizedly. He may, however, be correct that the Respondent had left
without the permission of the competent authority.

- It is not disputed that ex-post facto permission could also have been
granted. Moreover, the said office memo does not in any way deal with the
Respondent's contention that he should have been granted leave. Why the G
Respondent's application for grant of leave had not been favourably
considered by the Vice Chancellor, is not known. The Vice Chancellor
clearly framed an opinion that the Respondent has not obeyed his directions
and he had not seriously taken note of his order. The notice, thus, speaks
of a misconduct. H
554 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A It is furthennore evident that the Vice Chancellor in his notice clearly
demonstrated that he had made up his mind. He apparently had arrived at
a conclusion that the Respondent had committed misconduct and thus, it has
to be informed that his notice was issued by way of mere formality.

In the office memo dated 20122.5 .2000, the Vice Chancellor reiterates ....
B that the Respondent would be deemed to have abandoned his services and
while doing so, his explanation has been found to be unsatisfactory. The
Respondent was found to have not complied with his earlier direction but
then again he was given an opportunity to resume his duty on or before
17.5.2000 and despite the same he did not join his duties. He had gone to
C the extent of saying that the Respondent must have planned his visit much
in advance.

Yet again the copies of the said Memos were sent to the Respondent's
pennanent address or at the address of his wife.

D We may, at this juncture, notice the office memo dated 7.8.2000. The
Respondent appeared to have been called upon to produce certain documents,
which are as follows:

"I. Copies of documents in support of his having attended
scientific deliberations during the period of his stay
E abroad.

2. The details of the institutions/country and the date of his
visit to these institutions.

3. The certificate of having attended Frankfurt Retina
F
Meeting on 12th April, 2000

4. Certificate of having attended the Annual Congress of
Royal College of Ophthalmologists at Harrogate, U.K.
along with the details of his registration, remittance of
G registration fee etc.

5. Copies of documents in support of his working as
Honorary Fellow along with the offer of the institution
received from the Institution concerned and your
acceptance thereto.
H
V.C. BANARAS HINDU UNIVERSITY v. SHRJKANT [SINHA, J.] 555

6. Photostat copy of his passport (all pages). A
7. Any other relevant documents, if considered necessary
by him, in support of the facts mentioned in his
representation dated 21st July, 2000."

The Respondent had produced the documents specified a~ Sr. Nos. I, B
3, 4 and 6. So far as the document specified at Sr. No.5 is concerned, the
Respondent did not say that he had held any honorary position or was
working in the said capacity as such. The Respondent before us had made
an endeavour to tell his part of the story. We are, however, not concerned
therewith, as we are satisfied that from a perusal of said Office Memo dated c
7.8.2000, it is evident that the Vice Chancellor had exceeded his jurisdiction
in entering into the said question. An enquiry was, thus, purported to have
been initiated against the Respondent by the said authority not for the
purpose of finding out as to whether he had any justification for leaving his
place of work without obtaining the sanction/permission but as if he had
otherwise committed a grave misconduct. If he had committed misconduct,
D
indisputably, a disciplinary proceeding should have been initiated against
him. If no disciplinary proceeding was initiated against him, the question of
imposition of any punishment would not arise. The Vice Chancellor was also
not authorized therefor as it was the Executive council alone who could
initiate a departmental proceeding. E

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
F
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 Court's
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 G
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, H
556 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A but the same did not receive the seal of finality as the minutes of the meeting
had not been approved.

Moreover, a bare perusal of the impugned orders, it would appear that
the Vice Chancellor of the University did not refer to the provisions of the
notifications issued from time to time which would clearly go to show that
B the University was not sure as to whether the Respondent has committed a
misconduct or by leaving India without obtaining leave, he would be deemed
to have abandoned his service.

Although, laying down a provision providing for deemed abandonment
c 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. If the action taken by the authority
is found to be illogical in nature and, therefore, violative of Article 14 of
the Constitution, the same cannot be sustained. Statutory authority may pass
D an order which may otherwise be bona fide, but the same cannot be exercised
in an unfair or unreasonable manner. The Respondent has shown before us
that his leave had been sanctioned by the Director being the Head of the
Department in terms of the leave rules. It was the Director/Head of the
Department who could sanction the leave. Even the m2tter relating to grant
E of permission for his going abroad had been recommended by the Director.
The Respondent states and it had not been controverted that some other
doctor was given the charge of his duties. We have indicated sufficiently that
the Vice Chancellor posed unto himself a wrong question. A wrong question
leads to a wrong answer. When the statutory authority exercises its statutory
powers either in ignorance of the procedure prescribed in law or while
F 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. It suffers from
an error of law. ...
G Such an error of law is capable of being rectified by judicial review.
Reasonableness in the order and/or fairness in the procedure indisputably can
also be gone into by the writ Court.

We may notice a similar provision being clause 76 of the Bihar Services
H Code, which reads as under:
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT [SINHA, J.] 557

"Unless the State Government, in view of the special circumstances A
of the case, shall otherwise detennine, a government servant, after
five years' continuous absence from duty, elsewhere than on foreign
service in India, whether with or without leave ceases to be in
Government employ."

The validity of the said Rule came up for consideration before the Patna
B
High Court in SobhanaDas Guptav. The State ofBihar & Anr., (1974) PLJR
382, wherein the said Rule was struck down relying on Jai Shanker v. State
ofRajasthan, AIR (1966) SC 492 and Deokinandan Prasad v. State ofBihar,
AIR (1971) SC 1409 stating :
c
"I may first refer to the decision of the Supreme Court in the
case of Jai Shanker v. State of Rajasthan, AIR (1966) SC 492.
Regulation 13 of Jodhpur Service Regulation fell to be considered
in that case. The aforesaid regulation was:

"An individual who absents himself without pennission for
D
one month or longer after the end of his leave should be considered
to have sacrificed his appointment and may only be reinstated with
the sanction of the competent authority."

Considering this regulation Hidayatullah, J. observed: E
...
"Whichever way one looks at the matter, the order of the
Government involves a tennination of the service when the incumbent
is willing to serve. The Regulation involves a punishment for
overstaying one's leave and the burden is thrown on the incumbent F
to secure reinstatement by showing cause. It is true that the
Government may visit the punishment of discharge or removal from
service on a person who has absented himself by overstaying his
leave, but we do not think that Government can order a person to
be discharged from service without at least telling him that they
propose to remove him and giving him an opportunity of showing G
cause why he should not be removed. If this is done the incumbent
will be entitled to move against the punishment for if his plea
succeeds, he will not be removed and no question of reinstatement
will arise. It may be convenient to describe him as seeking
reinstatement but this is not tantamount to saying that because the H
558 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A person will only be reinstated by an appropriate authority, that the
removal is automatic and outside the protection of Article 311. A
removal is removal and if it is punishment for overstaying one's
leave an opportunity must be given to the person against whom such
an order is proposed, no matter how the Regulation describes it. To
give no opportunity is to go against Article 311 and this is what has
B happened here''.

It may be mentioned that this case arose out of a suit where a
declaration was sought that the termination of the service of the
plaintiff was illegal.
c
In the case of Deokinandan Prasad v. State of Bihar, AIR
( 1971) SC 1409 the true effect of the decision in Jai Shanker 's case
was considered. A reference was also made to Rule 76 of the Bihar
Service Code. In this context it was observed:

D
"A contention has been taken by the petitioner that the order dated
August 5, 1966 is an order removing him from service and it has
been passed in violation of Article 311 of the Constitution, According
to the respondents there is no violation of Article 311. On the other
hand, there is an automatic termination of the petitioner's employment
E under Rule 76 of the Service Code. It may not be necessary to
investigate this aspect ftlrther because on facts we have found that
Rule 76 of the Service Code has no application. Even if it is a
question of automatic termination of service for being continuously
absent for over a period of five years, Article 311 applies to such
cases as is laid down by this Court in [ 1966] I SCR 825 ~ AIR
F
(1966) SC 492. In that decision this Court had to consider Regulation
No. 13 of the Jodhpur Service Regulations which is as follows:

'An individual who absents himself without permission or who
remains absent without permission for one month or longer after the
G end of his leave should be considered to have sacrificed his
appointment and may only be reinstated with the sanction of the
competent authority.'

It was contended on behalf of the State of Rajasthan that the above
H regulation operated automallcally and there was no question of
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT [SINHA, J.] 559

removal from service because the officer ceased to be in the service A·
after the period mentioned in the regulation. This Court rejected, the
said contention and held that an opportunity must be given to a
person against whom such an order was proposed to be passed, no
matter how the regulation described it. It was further held to give
no opportunity is to go against Article 311 and this is what has
happened here." B

Therein, the law was laid down in the following terms :

"The consideration on these two cases makes it clear that in
the circumstance as in the present case, treating the petitioner to
have ceased to be in Government employ amounts to her removal,
c
and further that the said removal without giving her an opportunity
is to go against Article 311 of the Constitution. In the circumstances
of the present case, violation of Article 311 of the Constitution is
writ large. There can, therefore be no doubt that the order under
Annexure 2 is illegal, and the petitioner cannot be deemed to have D
ceased to be in Government employ on the basis of the said order
or on the basis of Rule 76 of the Service Code."

The Respondent herein had filed four writ petitions. Some interim
orders were also passed in his favour. He did not get the benefit
of any of the said orders. In his fourth writ petition, the Executive E
Council was directed to consider his case. It did not do so for more
than two years. Why despite the High Court's order, the Vice
Chancellor failed to place the matter before the Executive Council
is not disclosed. The resolution of the Executive Council dated 8/
9th January, 2003 was also not final. The same was placed before F
the High Court by way of a supplementary counter-affidavit only
on 23.3.2003 whereas the matter was heard much prior thereto and
the judgment was reserved. Judgment was delivered on 25th
March, 2003 which again go to show that an attempt had been made
by the University to stall the proceedings before the High Court.
Before us only the University has taken a stand that even the G
Executive Council had put its seal by way of approval of the order
of the Vice Chancellor.

As the initial order passed by the Vice Chancellor was wholly without
jurisdiction, the same was a nullity and, thus, the purported approval thereof,
H
560 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A by the Executive Council would not cure the defect.

Even if we do not take into consideration the legality, reasonableness
or otherwise of the resolution of the Executive Committee, it is clear that
so far as the order passed by the Vice Chancellor is concerned, he failed to
consider the question as to whether the Appellant was otherwise entitled to
B leave.

The Vice Chancellor appears to have made up his mind to impose the
punishment of dismissal on the Respondent herein. A post decisional hearing
given by the High Court was illusory in this case.

c In K.I. Shephard & Ors. etc. etc. v. Union of India & Ors., AIR ( 1988)
SC 686, this Court he Id :

" .. .It is common experience that once a decision has been taken,
there is tendency to uphold it and a representation may not really
yield any fruitful purpose."
D
[See also Assam Sillimanite Ltd. v. Union of India, [1990] 3 SCC 182
and H.L.Trehan v. Union of India, AIR (1989) SC 568.]

We have noticed hereinbefore that the nature of leave, inter alia, was
E compensatory one. Although it cannot be claimed as a matter of right but
an employee who had worked during summer vacation would have a
legitimate expectation that he can avail the same. He was also entitled to
be granted detention leave, unless there exists a just reason to refuse the
same. We have noticed hereinbefore that the Head of the Department
granted the leave and made recommendation for grant of permission. The
F Vice Chancellor even did not consider the same.

An order passed by a statutory authority, particularly when by reason
whereof a citizen of India would be visited with civil or evil consequences
must meet the test of reasonableness. Such a test of reasonableness vis-a-
vis the principle of natural justice may now be considered in the light of the
G
decisions of this Court.

The question came up for consideration before a three-Judge Bench
decision of this Court, in D.K. Yadav v. J,'dA Industries Ltd., [1993] 3 SCC
259, wherein emphasizing the requirements to comply with the principles of
H natural justice while terminating the services of the employees on the
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT [SINHA, J.) 561

touchstone of Article 21 of the Constitution of India; it was held that not A
only the procedure prescribed for depriving a person of his livelihood must
meet the challenge of Article 14 but also the law which will liable to be
decided on the anvil thereof.

Here again, this Court opined that Article 14 requires that the procedure
adopted must be just, fair and reasonable. It was furthermore held : B
"Article 21 clubs life with liberty, dignity of person with
means of livelihood without which the glorious content of dignity
of person would be reduced to animal existence. When it is
interpreted that the colour and content of procedure established by
law must be in conformity with the minimum fairness and processual c
justice, it would relieve legislative callousness despising opportunity
of being heard and fair opportunities of defence. Article 14 has a
pervasive processual potency and versatile quality, equalitarian in
its soul and allergic to discriminatory dictates. Equality is the
antithesis of arbitrariness." D
This Court opined that right to life enshrined under Article 21 would
include the right to livelihood and thus before any action putting an end to
the tenure of an employee is taken, fair play requires that reasonable
opportunity to put forth his case is given and domestic enquiry conducted
complying with the principles of natural justice. E
In Uptron India Ltd. v. Shammi Bhan & Anr., [1998] 6 SCC 538, this
Court was considering the validity of the provisions of the Standing Orders
of the company containing a clause that services of the workmen would be
liable for automatic termination. This Court opined that if prior to resorting
thereto an opportunity of hearing is not granted, such a provision would be
F
bad in law.

The said legal position was reiterated in Scooters India Ltd. v. M
Mohammad Yaqub & Anr., [2001] 1 SCC 61, where again requirement to
comply with the principles of natural justice was highlighted. G
The matter may, however, be different in a case where despite having
been given an opportunity of hearing, explanation regarding his unauthorized
absence is not forthcoming or despite giving him an opportunity. to join his
duty, he fails to do so, as was the case in Punjab & Sind Bank & Ors. v.
Sakattar Singh, [2001] 1 sec 214. H
562 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A In Lakshmi Precision Screws ltd. v. Ram Bhagat, [2002] 6 sec 552,
a Division Bench of this Court was considering clause 9(f)(ii) of the Standing
Orders which reads as under :

"9.(f) Any workman who,

B * * *
(ii) absents himself for ten consecutive working days without leave
shall be deemed to have left the firm's service without notice,
thereby terminating his service."
c The workman therein offered an explanation and having regard thereto,
the Labour Court came to the conclusion that the action of the management
in terminating the services of the workman therein was not justified. When
the matter reached this Court, it was opined:-

D "Let us, therefore, analyse as to whether this particular Standing
Order in fact warrants a conclusion without anything further on
record or to put it differently does it survive on its own and that
being a part of the contract of employment ought to govern the
situation as is covered in the contextual facts."

E Referring to the decisions noticed by us hereinbefore, it was held :

"It is thus in this context one ought to read the doctrine of
natural justice being an inbuilt requirement on the Standing Orders.
Significantly, the facts depict that the respondent workman remained
F absent from duty from 13. I 0. 1990 and it is within a period of four
days that a letter was sent to the workman informing him that since
he was absenting himself from duty without authorized leave he was
advised to report back within 48 hours and also to tender his
explanation for his absence, otherwise his disinterestedness would
thus be presumed."
G
The well settled principle of law as regards necessity to comply with
the principles of natural justice was again reiterated, stating:-

"Arbitrariness is an antithesis to rule of law, equity, fair play
H and justice - contract of employment there may be but it cannot
V.C. BANARAS HINDU UNIVERSITY v. SHRIKANT [SINHA, J.] 563

be devoid of the basic principles of the concept of justice. Justice- A
oriented approach as is the present trend in Indian jurisprudence
shall have to read as an inbuilt requirement of the basic of concept
of justice, to wit, the doctrine of natural justice, fairness, equality
and rule of law."

A provision relating to abandonment of service came up for consideration
B
·yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd & Ors., [2005]
5 SCC 337 before a Division Bench of this Court. This Court opined that
although in a case of that nature, principles of natural justice were required
to be complied with, a full-fledged departmental enquiry may not be
necessary, holding : c
"A limited enquiry as to whether the employee concerned had
sufficient explanation for not reporting to duties after the period of
leave had expired or failure on his part on being asked so to do,
in our considered view, amounts to sufficient compliance with the
requirements of the principles of natural justice."
D

Mr. Dwivedi placed strong reliance upon the decision of this Court in
Aligarh Muslim University v. Mansoor Ali Khan, [2000] 7 SCC 529. In that
case, interpretation of Rule 5(8)(ii) came up for consideration which is in
the following term : E
"Rule 5(8)(ii) An officer or other employee who absents himself
without leave or remains absent without leave after the expiry of
the leave granted to him, shall, if he is permitted to rejoin duty, be
entitled to no leave allowance or salary for the period of such
F
absence and such period will be debited against his leave account
as leave without pay unless his leave is extended by the authority
empowered to grant the leave. Wilful absence from duty after
the expiry of leave may be treated as misconduct for the
purpose of clause 12 of Chapter IV of the Executive Ordinances of
AMU and para 10 of Chapter IX of Regulations of the Executive G
Council."

It was held that a show cause notice and reply would be necessary. If
no show cause notice had been given, this Court held that the principles of
natural justice would be held to be complied with. H
564 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A This Court, however, in the special facts and circumstances of this case
and particularly in view of the fact that admittedly leave was initially granted
for a period of two years and an application for extension thereof was made
by the Respondent therein for a further period of three years which was
acceded to only for one year, this Court opined that on the admitted facts,
the absence of a notice to show cause would not make any difference as the
B employee admittedly continuing to live in Libya, the extension of leave
sought for was bound to be refused.

The parties in this case proceeded on the basis that it was not a case
of misconduct. The High Court, therefore, in our opinion, wrongly arrived
c at the conclusion that the Respondent was guilty of misconduct. In that view
of the matter, it is also not necessary for us to advert to the question as to
whether in the facts and circumstances of this case, the High Court could
have directed modification in the quantum of punishment without arriving
at a finding that the same was shockingly disproportionate to the gravity of
the charges made against the Respondent herein.
D
The fact situation obtaining in this case is entirely different. Not only
the Respondent made all attempts to join his duties, but, the situation
prevented him from doing so beyond his control. Furthermore, in this case,
the Vice Chancellor had no jurisdiction at all. Even the notification dated
25.03.1998 had no application.

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
F 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. Counsel's fee is assessed at Rs.10,000.

In the result, Civil Appeal No. 4147 of2003 is dismissed whereas Civil
G Appeal No. 248 of 2004 is allowed in part.

V.S.S. Appeals disposed of.