IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 1 of 1999 in SPECIAL CIVIL APPLICATIONNo 9418 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- STATE OF GUJARAT Versus SATISHCHANDRA BALASHANKER VORA -------------------------------------------------------------- Appearance: MR. R.N. RAWAL, ADDL SOLICITOR GENERAL with MR. P.G. DESAI, GOVERNMENT PLEADER for Appellant MR. A.H. MEHTA, for Respondent No. 1 MR DS NANAVATI for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE A.L.DAVE Date of decision: 31/03/99 C.A.V. JUDGEMENT (Per Patel, J. ) 1. State of Gujarat being aggrieved by the order passed by learned Single Judge in Special Civil Application No. 9418 of 1998 on 30.12.1998 allowing the petition, has preferred this appeal. 2. The aforesaid Special Civil Application was filed by respondent No.1 herein [hereinafter referred to as the petitioner]. The petitioner stood dismissed from the office of the Vice Chancellor of respondent No.3 Gujarat University [hereinafter referred to as the University] as the petitioner went abroad without prior approval of the Chancellor, to attend a conference at Bangkok from 12th to 14th November 1997; The petitioner also failed to obtain political clearance from the concerned Ministry of the Government of India before proceeding abroad. It is the case of the petitioner that the petitioner was appointed as Vice Chancellor of the University by a notification of the State Government dated 27.12.1996 for a period of three years. An invitation for participating in the 4th mid-term conference organised by the International Association of Universities at Bangkok was extended which was ultimately accepted and approved by Executive Council of the University on 5.10.1997. The expenditure of Rs.53,750/- was to be made available as per the rules from the unassigned grant of the University Grants Commission. On 6th October 1997, the petitioner addressed a letter to the Chancellor intimating in this behalf and sought the permission of the Chancellor to attend the said conference and to grant him duty leave from 9.11.1997 to 18.11.1997. Along with the said letter, he requested to nominate Prof. K. S. Shastri under the provisions contained in 10 (6) (a) of the Gujarat University Act [hereinafter referred to as the Act], to perform the current duties of the Vice Chancellor during his absence. On 14.10.1997, Additional Chief Secretary addressed a letter calling for the following information for consideration of His Excellency the Governor, who is also the Chancellor of University :- "1. Whether Prof. Vora proposes to visit Thailand on Official Passport, and if so, whether permission from competent authority has been granted? 2. Who will bear the expenditure of this tour, i.e. travel expenses, hospitality, etc. If the expenditure is to be borne by the Government, kindly clarify whether such sanction has been accorded? 3. If the expenses on hospitality are to be borne by the host, political clearance would be required from the Government of India, Ministry of Home Affairs. 4. Special Civil Application No. 7295 of 1997 has been filed in the High Court of Gujarat by Shri M.R. Patel against the appointment of Prof. K.S. Shastri as Pro-Vice-Chancellor, Gujarat University, State Government may therefore kindly examine whether it would be advisable to grant such a permission to the Vice Chancellor when such an important matter is pending in the High Court of Gujarat and whether it would be advisable to give charge to Prof. Shastri during Prof. Vora's absence when a petition challenging the validity of appointment of Prof. Shastri is pending in the High Court." 3. On 17.10.1997, D.C. Vora, Deputy Secretary in the Education Department of the State of Gujarat, by a special messenger, forwarded a letter to the Registrar of the University with regard to queries No. 1,2 and 3 referred to hereinabove, and to reply in that behalf immediately. On 18.10.1997, the Registrar of the University replied to the aforesaid letter interalia stating that :- "(i). The permission of the University Grants Commission has been obtained by us for participating in 4th Mid-term conference to be held at Bangkok Thailand from 12-14 November, 1997. The copy of granting permission by the University Grants Commission vide DO letter No. F-16-8/97 (TG) dated 3rd October, 1997 is enclosed for your kind perusal. (ii). The entire 100% expenditure would be borne by the University Grants Commission under unassigned grant scheme. (iii). Since the entire expenditure would be borne by the University Grants Commission, there appears no need to get political clearance from the Government of India, Ministry of Home Affairs. Besides this is an academic conference, and therefore, question also does not arise to get the political clearance from the Government of India, Ministry of Home Affairs." (emphasis ours). 3.1 On 11.11.1997, Under Secretary to His Excellency the Governor addressed a letter to the Additional Chief Secretary to the Government of Gujarat, the text of which is reproduced below:- "In continuation of this office letter No. GS XI / 4777 / 1997 dated the 7th November, 1997 on the subject mentioned above. I am directed to state that it has been clarified by the Ministry of External Affairs, Government of India that the political clearance is necessary on account of the visit of the Vice-Chancellor, Gujarat University, to attend the IAU 4th Mid term Conference at Bangkok (Thailand). It has been further clarified that the requisite proposal for the political clearance is to be routed through the Ministry of Human Resource Development, Government of India." 3.2 In this behalf, information was sought for from the Resident Commissioner, Government of Gujarat, New Delhi, who, by a fax message, after ascertaining from the Ministry of External Affairs stated that it is necessary to have political clearance on account of the visit of the Vice Chancellor to attend the said conference, which is required to be routed through the Ministry of Human Resources Development to Government of India. It transpires from the record that the petitioner, though requested for grant of leave to attend the conference, without prior permission and even without intimation, after handing over the charge to Pro-Vice-Chancellor K.S. Shastri, left for Bangkok to attend the conference. Thus he absented from 9.11.1997 to 18.11.1997. 3.3 By letter dated 31.1.1998, [page 94] the Government, being the appointing authority, decided to seek explanation of the petitioner for irregularities, such as : (1). While the application of the petitioner for permission of the Chancellor to attend the Conference at Bangkok was under process, he proceeded abroad without permission of the Chancellor and he did not even inform the Chancellor that he is proceeding abroad. (2). The information asked for in letter dated 17.10.1997 as to whether the petitioner proposed to visit Thailand on official passport or not has not been furnished by the petitioner. (3). No reply has been given by the University to letter dated 29.11.1997 intimating that as per the Ministry of External Affairs, political clearance is required by the Vice Chancellor to attend the Conference. 3.4 The State Government, viewing the aforesaid misconduct and misdemeanour seriously, called upon the petitioner to explain within 15 days of receipt of the said letter. For a pretty long period, the petitioner did not reply to the letter hence by letter dated 9th July 1998 petitioner was asked to send his explanation. He was also given an opportunity of personal hearing. However, on 24th July 1998, the petitioner submitted his explanation. This was followed by another letter from the petitioner to the Additional Chief Secretary, dated 22.8.1998. On 9.11.1998, the Government issued a notification dismissing the petitioner from the post of Vice-Chancellor. The order dismissing the petitioner speaks about the petitioner proceeding on leave without prior sanction of the Chancellor and not even informing the Chancellor before going abroad, and, non obtaining of political clearance from the respective ministry. After expressing that the explanation tendered by the petitioner was unacceptable, the petitioner was dismissed from his present post of the Vice-Chancellor with immediate effect on administrative grounds and in public interest. 4. In his explanation dated 24.7.1998, Mr. Vora has stated that "At least I am not aware as to what is the connotation of 'political clearance' in the context of the Vice Chancellor attending the Mid-term conference organised by the International Association of Universities for which University Grants Commission is to provide 100% assistance". Neither the funds of Gujarat University were to be utilised for the same nor any foreign agency was to provide any financial assistance. In the said letter [page 62] the petitioner further stated that "bonafide I believed that I would receive the permission in due course and thereupon I proceeded to Thailand". It appears that the petitioner insisted that it was incumbent on the part of the Vice-Chancellor to attend such conference which would be beneficial to the country and the State of Gujarat. It is further stated in the letter [page 62] that "since the inception of Gujarat University every Vice-Chancellor has gone abroad for such a purpose and never has been a question of such political clearance". The petitioner further stated in the letter that [page 63] "I had also called upon the Honourable Chancellor subsequently and I had also addressed a letter to him on 24th December, 1997 in this regard. In the personal meeting H.E did not even touch upon the problem, leading to believe that the matter was now settled and H.E. was satisfied." In the concluding paragraph, the petitioner stated that the act of the petitioner cannot be treated as "misconduct" or "misdemeanour." 4.1 In the further explanation dated 22.8.1998 submitted by the petitioner, the petitioner contended that Vice Chancellor is not a Government servant and he cannot be treated as an ordinary Government servant. He further contended that if Vice Chancellor is treated as an ordinary Government servant, the very dignity and status of the office of the Vice Chancellor will suffer, especially when in these days the discipline amongst students and standards of education are deteriorating. He further submitted that efforts should be made by all concerned to strengthen the dignity and status of the office of Vice Chancellor and no action for the minor procedural lapses should be taken against the Vice Chancellor by the Government. The petitioner has clearly stated in this letter [page 65] that he did not obtain political clearance before proceeding to attend the conference. Thus, this is an admitted fact. 4.2 The petitioner has stated that the letter [presumably Annx. II at page 91 dated 17.10.97] was received by him few days before the date of his departure and therefore it was physically impossible for him to obtain such political clearance. The petitioner has further asserted that reading the letter, (i.e. dt. 17.10.97 page 66) implied consent was given to him to attend the conference but before proceeding he was to obtain political clearance. He further submitted that predecessors in the office of Vice Chancellor had never obtained such political clearance and even if it is assumed that such a clearance was required, the lapse was so minor which did not call for any inquiry. He further submitted in the letter that for minor lapse, there is no question of holding any inquiry and the matter is trifle, more particularly, by not obtaining political clearance no adverse consequences have ensued. He further submitted that at no point of time, he was told that he should not proceed to attend such conference and as the letter dated 6.10.1997 addressed to His Excellency the Governor was not replied, he took it for granted that the permission to leave has been granted. The petitioner, in clear terms has stated that he proceeded abroad on presumption that the permission was granted by His Excellency the Governor in view of the circumstances mentioned in the letter and in the concluding part of the letter, requested that the file may be closed permanently and he may be informed accordingly. 5. It is averred in the petition that to the surprise of the petitioner, he received a communication dated 9.11.1998 which is in the form of a Notification issued by Deputy Secretary to Government of Gujarat, Education Department to the effect that the petitioner, during his duty, indulged in misconduct and misdemeanour unbecoming of his academic and the highest position in the University, and therefore he stood dismissed from his present post of Vice Chancellor with immediate effect on administrative grounds and in public interest. The gist of the misconduct and misdemeanour described in the said Notification are: (1). Without prior sanction of His Excellency the Governor and even without prior intimation before going abroad, the petitioner went abroad; (2). Political Clearance is not obtained by the petitioner before going abroad; 5.1 It is further stated in the notification that the Government vide letter No. GUJ/1097/GOVR/168-KH dated 31.1.1998 called for the explanation as to why he went abroad without prior sanction or prior intimation of His Excellency, and the petitioner submitted his explanation by letter dated 9.2.1998, which was found to be superficial, not to the point and unsatisfactory, and, therefore, the Government did not accept the explanation. The petitioner was, therefore, by letter No. GUJ-1097/GOVT/168-KH dated 9.7.1998 called upon to explain as to why action should not be taken against him under section 16 of the Bombay General Clauses Act and he was given an opportunity of hearing in person on 24.7.1998 at 12.00 Noon before the Principal Secretary (Higher and Technical Education). The petitioner, by letter dated 24.7.1998, submitted explanation repeating the earlier contentions and, therefore, the Government has not accepted that explanation. After recording the aforesaid, in the conclusive portion of the Order/Notification, it is recorded as under :- "Shri S.B. Vora occupies the academic and the highest position of the Vice-Chancellor of the University and the social and moral responsibility to infuse the sense of discipline amongst youths rests with him. The Government has taken serious note of the abovesaid gross misconduct and disobedience and insubordination of the Government by Shri Vora. Therefore, it does not seem proper to continue Shri S.B. Vora, Vice-Chancellor, Gujarat University, Ahmedabad on his present post. Therefore, under section 16 of the Bombay General Clauses Act, Shri S.B. Vora is dismissed from his present post of the Vice-Chancellor with immediate effect on administrative grounds and in public interest." 5.2 It is the above order that was challenged by the petitioner in the aforesaid Special Civil Application. 6. Learned Single Judge, after hearing the learned counsel and the material placed on record, by his judgment and order dated 30.12.1998, allowed the petition and gave the following directions in the penultimate paragraph of the judgment:- "Consequently, I allow this Special Civil Application and make the Rule absolute by issuing a writ of mandamus quashing and setting aside the Notification of the State Government dated 9.11.98. The petitioner is treated to be continuing in his tenure as Vice-Chancellor as if the Notification dated 9.11.98 has never been issued at all. Respondent No.1 will pay the cost of the petition which is assessed as Rs.10,000/-. 7. Before us, in this L.P.A., learned Additional Solicitor General Mr. K.N. Rawal as well as Government Pleader Mr. P.G. Desai appeared for the State. Learned counsel Mr. Arun Mehta appeared for the petitioner who supported the order passed by the learned Single Judge. Mr. D.S. Nanavati, learned advocate appeared for the University and submitted that the University has not to say anything in the matter. 8. On behalf of the State, broadly speaking, the following arguments were advanced :- (1). Conclusion of the learned Single Judge that principles of natural justice is violated is wrong and contrary to the evidence placed on record, and as the judgment has proceeded on the aforesaid premises, the judgment must fail. (2). The conclusion that inquiry ought to have been held by a Judge of the high Court , according to learned Additional Solicitor General, is a classic case of judicial legislation not borne out from any provisions of law and, therefore, the decision is wrong. (3). While exercising the powers under the Constitution, the Court is required to consider whether the process of decision making is properly followed or not, and it is highly improper to appreciate the decision as if the Court is exercising appellate power or as if the Court is deciding the impugned order sitting in appeal. (4). Even if two views are possible, then in a matter like this, the Court need not interfere if the view taken is possible. (5). In a matter relating to education and education policy, the Court should be slow to interfere though the Court is clothed with jurisdiction. 9. Mr. Mehta, on behalf of the respondent, submitted that in view of BOOLCHAND vs. KURUKSHETRA UNIVERSITY reported in AIR 1968 SC 292, on good grounds, services can be terminated but not otherwise. He further submitted that Vice Chancellor can be removed provided the exercise of power is for a good cause, in the interest of the University and the person is unfit to continue as Vice Chancellor, and not otherwise; The Office of the Vice Chancellor is independent and not under the control of the State Government. It was further contended that under section 10 (5) of the Act, the petitioner was appointed for a fixed term of three years and in absence of terms and conditions subject to which he was holding the office, has been determined by the State Government under sub-section 5 of Section 10 of the Act and before the expiry of the term, he cannot be removed. He further submitted that though he sought for permission for leaving the country for attending the conference, no reply was given in time, and therefore, it cannot be said that the action of the petitioner amounts to misconduct or insubordination, more particularly in the absence of any definition of misconduct in the Act. He further submitted that failure to obtain political clearance would not amount to misconduct and/or insubordination when infact such permission was not required to be obtained as host was not to bear the hospitality expenses, and in the past, Vice Chancellors proceeded abroad for attending such conference without express previous approval of the State Government or obtaining "political clearance". It was further argued on behalf of the petitioner that as the petitioner was not a Government servant, he cannot be dismissed under section 16 of the Bombay General Clauses Act by the State Government on the grounds stated in the order. It was further argued that the grounds on which the impugned order is passed cannot reasonably and adversely affect the discipline which is required to be inculcated in the education world for which the petitioner was morally and socially responsible. It was further argued that the order terminating the services of the petitioner is arbitrary and violative of Article 14 of the Constitution of India. Mr. Mehta further submitted that the decision is vitiated inasmuch as the grounds which were never communicated to the petitioner has been taken into consideration while taking the decision. (I). DISMISSAL TO BE PRECEDED BY INQUIRY TO BE CONDUCTED BY A SITTING OR RETIRED HIGH COURT JUDGE. 10. Learned Single Judge in paragraph 11 of the judgment held that "the Chancellor can exercise the power to dismiss the Vice Chancellor only for good cases, i.e. in the interest of the University and only when it is found, after due inquiry held in a manner consistent with the rules of natural justice, that the holder of the office is unfit to continue as Vice Chancellor". Learned Single Judge further held in the same paragraph that "It is significant to notice that the Apex Court has used the phrase "'found after due inquiry"' and not the phrase "'after giving opportunity of hearing"'. Learned Single Judge, referring to the judgment in the case of MANAGING DIRECTOR VS. UP WAREHOUSING CORPORATION reported in AIR 1980 SC 840 wherein services of an employee were terminated after enquiry, observed that the employer could not terminate the services without due inquiry in accordance with natural justice in the absence of any statutory rules and/or regulations. Learned Single Judge further pointed out that the Apex Court held that the "rules of natural justice required that the respondent should be given reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which mean and includes an opportunity to cross-examine the witnesses relied upon by the Corporation and an opportunity to lead evidence in defence of the charges as also a show cause notice for the proposed punishment". In view of this decision, learned Single Judge considered that the two notices dated 31.1.1998 and 9.7.1998 calling upon the petitioner and also giving the opportunity of personal hearing, cannot be said that the decision was taken after due inquiry. Learned Single Judge was of the opinion that if the respondents were not satisfied with the reply given by the petitioner in the instant case, they ought to have instituted an inquiry. It is at this juncture the learned Single has held [paragraph 12 of the order] that looking to the high office of the Vice Chancellor, in all fairness, inquiry could be entrusted to a Hon'ble sitting or retired Judge of the High Court for which a request could be made by the Government to the Hon'ble Chief Justice. Thus, the learned Single Judge held that the order of dismissal being not preceded by inquiry of whatsoever nature, is exfacie illegal, void and non-est. 11. The aforesaid findings recorded by the learned Single Judge are required to be appreciated after considering the fact that the petitioner by letter dated 6th October 1997 sought permission for going abroad from 9.11.1997 to 18.11.1997. In the said letter he also requested to nominate Prof. K.S. Shastri Pro-Vice-Chancellor to perform the current duties of the office of the Vice-Chancellor during the period of his absence i.e. from 9.11.1997 to 18.11.1997. On 14.10.1997, the Chancellor addressed a letter to the Government, and soon thereafter, State Government addressed a letter on 17.10.1997 seeking certain clarifications from the Vice Chancellor about which we have referred to in the earlier part of this judgment. In reply thereto, a letter was addressed on 18.10.1997 stating that permission of the University Grants Commission has been obtained, vide letter dated 3rd October 1997 stating that entire expenses were to be borne by the University Grants Commission and there appears no need to get political clearance from the Government of India. Suffice it to say that by this letter, the petitioner disclosed his intention in unequivocal terms that as the amount was to be spent by U.G.C., there is no need to get political clearance. However, the Government, after due inquiry, pointed out that there is requirement of political clearance for Vice Chancellor while attending such conference. It was submitted before the Court that when the State Government as well as the Chancellor raised queries, it was incorrect on the part of the petitioner to presume that permission was granted. It was further submitted that the letter was addressed on 6th October 1997 which was promptly replied to. It is required to be noted that no permission was granted to go abroad and the matter being under investigation, it may take some time. It was submitted that the petitioner could have moved the High Court earlier before leaving the country but having not done so, and without prior permission of the Chancellor, and without political clearance, the petitioner left the country; the State was, therefore, justified in taking action. It was submitted that in the absence of regulation, principles of natural justice is required to be followed.