IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12029 of 1996 RAM SWARATH THAKUR @ MATWALA son of Sri Brahmadeo Thakur, resident of village Garhsheshari, Police Station Vidyapatinagar, District Samastipur, at present Lecturer in the Depatment of Music, Women‟s College, Samastipur. Versus 1.THE STATE OF BIHAR 2.The Chancellor, Universities of Bihar, Raj Bhawan, Patna. 3.The Secretary and Commissioner, Higher Education, Government of Bihar, Vikas Bhawan, Patna. 4.The Director, Higher Education, Government of Bihar, Vikas Bhavan, Patna. 5.The Officer-on- Special Duty to the Governor of Bihar, Raj Bhavan, Patna. 6.The Vice Chancellor, Lalit Narayan Mithila University, Kameshwasr Nagar, Darbhanga. 7.The Registrar, Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga. 8.The Principal, Women‟s College, Samastipur. 9.Smt. Jahanvi Mukherjee, Lecturer, Department of Music, Women‟s College, Samastipur. ----------- For the petitioner: Mr. Anisur Rahman & Mr. B.K.Dubey. Adv. For the State: S.C.7 For the University: Mr. M.K. Sinha. ……….. PRESENT THE HON’BLE MR JUSTICE MIHIR KUMAR JHA. ………. J U D G M E N T. Heard Mr. Ganesh Prasad Singh, learned senior counsel appearing on behalf of the petitioner, Mr. Pushkar Narain Shahi, learned counsel appearing on behalf of L.N. Mithila University and Mr. Ambar Nath Banerjee, learned counsel appearing on behalf of respondent no.9. Prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of a writ in the nature of Certiorari to quash the letter as contained in Memo No.2503 dated 25.9.1996 issued under the signature of the Officer- on- Special Duty to the Governor of Bihar, Patna, 2 respondent no.5, whereby the Vice Chancellor of L.N. MIthila University, Kameshwar Nagar, Darbhanga, respondent no.6, has been directed to constitute an enquiry in the matter relating to the appointment of the petitioner, which appointment as per his decision is irregular and the appointment of one Smt. Jahanvi Mukherjee as against second post of Lecturer in the Department of Music of the College in question has been approved as also the notification as contained in memo no.15504- 10/96 dated 29.10.1996 issued under the signature of the Registrar (Respondent no.7) upon the order of the Vice Chancellor (respondent no.6), whereby the appointment of the petitioner being declared by the Chancellor (respondent no.2) as irregular appointment, has been cancelled as also letter no. 99/96 dated 31.10.1996 issued by the Principal of the College, (respondent no.9), whereby the petitioner has been directed to hand over all the accessories of Music Department to one Lecturer in the Department of Music in the college and for issuance of a consequential writ in the nature of mandamus directing and commanding the respondents not to interfere with the appointment as also duties and functions of the petitioner as Lecturer in the Department of Music in the College in question as also for a direction to the respondents to absorb the services of the petitioner in permanent establishment as Lecturer as also make payment of salary along with arrears, and/or for issuance of appropriate writ/ order/ direction for which the petitioner maybe found legally entitled to under the facts and circumstances stated hereinunder.” Mr. Singh, while assailing the impugned order passed by the Vice Chancellor of the University dated 29.10.1996, would submit that services of the petitioner were terminated without even giving the show cause notice muchless holding an enquiry and as such the impugned order is in violation of principles of natural justice. Mr. Singh has further submitted that once the Registrar of the University in his enquiry report dated 31.1.1986 had held the petitioner to be entitled for absorption against the first post of 3 Lecturer in Music in the Women‟s College (hereinafter referred to a the College), any adverse opinion pertaining to the services of the petitioner could have been taken only after complying the principles of natural justice. Though Mr. Singh has addressed the Court on other issues, but then as this issue of violation of principles of natural justice itself will go to the root of the matter, this Court also for the time has confined the counsel for the respondents to answer this very proposition. Mr. Shahi, learned counsel appearing on behalf of the University would submit that despite repeated indulgence given in this case for a period of last 14 years the University has not been able to file a counter affidavit and he had expected that now in view of last order of this Court dated 6.7.2010 the University could be in a position to file its counter affidavit. In view of the fact that the University has been given sufficient time and repeated indulgence for filing the counter affidavit, this Court can no longer wait for filing of the counter affidavit by the University especially when this writ petition of the year 1996 has been placed for final hearing. In such circumstances, Mr. Shahi would place reliance on the counter affidavit filed by respondent no.9 and would submit that since some of the documents have been brought on record by counsel for respondent no.9, he may be allowed to at least refer to them for making his submission. This Court would find that the counter affidavit of respondent no.9 was filed well in advance and 4 the stand of respondent no.9 and the University as with regard to the case of the petitioner is the same and therefore, this Court has permitted Mr. Shahi to make submission on the basis of counter affidavit filed by respondent no.9. On the basis of counter affidavit of respondent no.9 Mr. Shahi had tried to impress that as a matter of fact it was respondent no.9 who had moved the Chancellor for getting her services approved/absorbed against the one sanctioned post of Lecturer of Music in the College and in that context the Chancellor had instructed an enquiry to the Vice Chancellor, whereafter a detailed enquiry report was submitted by the Registrar of the University on 25.1.1996, wherein after going through the records of the College as also looking into service history of the petitioner, respondent no.9 and one Mrs. Sharda Sinha, he had held that against two sanctioned posts of Lecturer only Sharda Sinha and respondent no.9 were eligible and fit to be absorbed. Mr. Shahi has submitted that the order of the Chancellor dated 25.9.1996 has been passed on such enquiry made by the University and a final decision taken thereon by the Chancellor. Mr. Shahi in this context has drawn attention towards the fact that that in the said enquiry report, the Registrar of the University has also recorded that the petitioner had no qualification for the post of Lecturer on which he was said to have been appointed in the year, 1968, inasmuch as, he had acquired qualification for the post of Lecturer in Music only in the year 1977 and thus his so called 5 appointment made by the Governing body of the College was void abinitio. He has also submitted that the plea of the petitioner that his services was confirmed by the Governing body of the college w.e.f. 1977 has no meaning in the eye of law because the first post of Lecturer of Music was approved by the State Government only in the month of October, 1979. Commenting further Mr. Shahi has submitted that as a matter of fact this college was taken over made constituent in the third phase under the order of the State Government and became constituent College of the L.N. Mithila University w.e.f. September, 1980 and therefore the so called recommendation of the College Service Commission in favour of the petitioner giving concurrence in the month of December, 1980 will have no meaning in the eye of law. Mr. Shahi, therefore, has submitted that even if opportunity of hearing was not given to the petitioner it could have made no difference, inasmuch as, the very appointment of the petitioner was void abinitio. Mr. Banerjee, supporting the submission of Mr. Shahi has submitted that as a matter of fact the petitioner was a practicing lawyer and in fact that fact of his being Advocate is confirmed even from the first enquiry report of the year, 1986, but the Registrar‟s views of recommending the petitioner for absorption against the first post of Lecturer in Music despite recording the fact that he was a practicing lawyer, is unsustainable in law because he had never made an enquiry as with regard to qualification of the petitioner on the date of his appointment in the 6 year, 1968. He would further submit that when a person like the petitioner did not possess qualification for the post of Lecturer in Music, there was no question his being absorbed in the College and as a matter of fact the University had never absorbed the petitioner in terms of Section 4 (1) (14) of the Act. Proceeding further Mr. Banerjee would submit that since services of the petitioner was never taken over and he was not paid salary of the post of Lecturer in Music, there would be no concept of termination of service, inasmuch as, services of the petitioner were never recognized/absorbed by the University and therefore there would be no question of violation of principles of natural justice in so called termination of his service. From the submissions noted above, it would become clear that as a matter of fact the case of the petitioner is one with regard to absorption in the service of the college. The College was taken over and made constituent unit of L.N. Mithila University in the year, 1980 and when assets and liabilities of the College were taken over on 12.9.1980, an issue also arose with regard to also recognizing the service of one of the teacher of the college in the subject of Music. At that point of time several exercise was made but at least from the enquiry report it would go to show that rightly or wrongly the Registrar and the Vice Chancellor of the University were prima-facie of the view that services of the petitioner should be absorbed against one of two of the sanctioned posts of Lecturer in Music. 7 True it is that no final order could be passed and as the matter was agitated by respondent no.9 before the Chancellor and the Chancellor has ultimately held that appointment of the petitioner was rank illegal and therefore he was required to be removed from service. In such a situation, strictly speaking, the concept of termination of service would not be applicable, but then since the petitioner was shown to be working as lecturer in the College and the University had prima-facie accepted the case of the petitioner vide Annexure-4, it was incumbent on the Vice Chancellor/ Registrar of the University to have actually given a show cause notice to the petitioner before proceeding to pass the impugned order. In this context even the order of the Chancellor was to the same effect, inasmuch as, in the operative portion of the impugned order dated 25.9.1996, the Chancellor had directed as follows:- “………The Hon‟ble Chancellor has further been pleased to direct that an enquiry be made into the matter of appointment of Shri R.S. Thakur “Matwala” as Lecturer in Music as his appointment appears to have been made irregularly and fix up responsibility for irregular appointment……..” Mr. Singh in this context, in fact, has rightly relied on the statement made in paragraph 27 of the writ application to contend that after the aforesaid order of the Chancellor and before passing the impugned order by the Vice Chancellor on 29.10.1996 (Annexure-12) no show cause notice and/or opportunity of hearing was given to the petitioner and in this regard statement made in 8 paragraph 27 of the writ application reads as follows:- “That on the one hand, the matter relating to the absorption of the service of the petitioner was pending before the State Government and time without number, he is being asked to furnish the required documents and the petitioner in compliance of the direction always furnished the required information, on the other hand, without giving any show-cause or opportunity to establish the genuineness of his appointment the petitioner became shocked and surprised after coming to know about the letter of the Officer- on- Special Duty to the Governor of Bihar (respondent no.5) dated 25.9.1996, whereby the appointment of the respondent, smt. Jahanvi Mukherjee has been approved against second sanctioned post and a direction has been given for enquiry to be made into the matter of appointment of the petitioner as lecturer in the Department of Music saying as the appointment appears to have been made irregularly.” As noted above, there is no counter affidavit on behalf of the University and there is no document enclosed in the counter affidavit of respondent no.9 from which Mr Shahi could have at least satisfied this Court that there was any show cause notice given to the petitioner, after order of the Chancellor dated 25.9.1996 and before the impugned order passed by the Vice Chancellor on 29.9.1996. That would clearly mean that services of the petitioner were sought to be dispensed with by putting the end of claim for appointment/absorption even without giving an opportunity of hearing to the petitioner. This aspect of the matter even in respect of taking over of service and absorption of the employees of the affiliated College made constituent unit of the University was directly gone into by the Apex Court in the case of „Basudeo Tiwary Vs. Sido Kanhu University’, reported in 1999 9 (1) PLJR (SC) 30 wherein it was held as follows:- “Several contentions have been addressed by learned counsel on either side. However, for the purpose of disposal of this appeal, it is suffice to consider only one aspect of the matter and that is, whether the appellant had been given an opportunity of being heard before terminating his services and in the absence of the same, whether such termination is valid. The High Court took the view that the appointment of the appellant made by the Syndicate of the University by its resolution dated 24.1.1986 is illegal and on that basis took the view that the termination of services was in order but did not examine the aspect with which we are concerned in the present case as to the non observance of the rule of audi alteram partem. The law is settled that non-ar-bitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are the components of fair treatment. The conferment of absolute power to terminate the services of an employee is an antithesis of fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 : AIR 1991 SC 101. In order to impose procedural safeguards, this Court has read the requirement of natural justice in may situations when the statute is silent on this point. The approach of this Court in this regard is that omission to impose the hearing requirement in the State under which the impugned action is being taken does not exclude hearing- it may be implied from the nature of the power- particularly when the right of a party is affected adversely. The justification for reading such a requirement is that the court merely supplies omission of the legislature (vide Mohinder Singh Gill vs. Chief Election commr. (1978) 1 SCC 405: AIR 1978 SC 851) and except in case of direct legislative negation or implied exclusion (vide S.L. Kapoor vs. Jagmohan (1980) 4 SCC 379: AIR 1981 SC 136). In the light of these principles of law, we 10 have to examine the scope of the provision of Section 35 (3) which reads as follows: “35. (3) Any appointment or promotion made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorized manner shall be terminated at any time without notice.” The said provision proves that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorized manner. The condition precedent for exercise of this power is that an appointment had been made contrary to the act, rules, statutes and regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or regulations, etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry, the person whose appointment is under enquiry will have to be issued a notice. If notice is not given to him, then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha case (supra). In such an event, we have to hold that in the provision, there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the act, statute, rule or regulation etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35 (3) in this case will have to be read. Admittedly in this case, notice has not been given to the appellant before holding that his appointment is irregular or unauthorized and ordering termination of his service. Hence the impugned order terminating the services of the appellant cannot be sustained.” 11 In view of the aforementioned authoritative pronouncement, this Court must hold that Annexure-12 cannot be sustained and is accordingly quashed. The piquant situation, in fact, which has now arisen, inasmuch as, the petitioner as also respondent no.9 have attained the age of superannuation and Mr. Banerjee has informed this Court that respondent no. 9 in fact has already superannuated in the month of February, 2002 and the petitioner had also attained the age of superannuation in the month of June, 1997 and therefore, even when this matter has to be remitted back, an enquiry has to be held on the question as to whether services of the petitioner could be absorbed in terms of the government decision regarding take over of the third phase Colleges and absorption of the working teachers as on the date of take over. It may be that if the petitioner is in a position to establish that his services were fit to be absorbed in view of the College being made constituent in September, 1980, the petitioner may become entitled for payment of salary for at least the period he could have continued in service of the College after it became constituent. Therefore, this Court while quashing the order of the University as contained in Annexure-12 dated 21.10.1996 so far it relates to termination of services of the petitioner, would direct the Registrar of the University to hold an enquiry as with regard to claim of the petitioner of his being absorbed against one of the two sanctioned posts of Lecturer. For this purpose, the Registrar of the 12 University will not only look into the government order issued in the year, 1980 laying down norms for take over of services of teaching and non teaching employees of the affiliated College made constituent but also would see as to whether the petitioner‟s appointment in the affiliated college made in the year, 1968 was as per the provisions of Bihar State Universities Act 1960 and its statutes framed thereunder. If the Registrar would come to a finding that appointment of the petitioner in the year, 1968 was made in invalid manner, he would then proceed to examine as to whether the petitioner in terms of Section 57 A of 1976 Act could have been allowed to continue as Lecturer in the College without recommendation of the College Service Commission prior to the date the College had become constituent. The Registrar thereafter having made his preliminary enquiry would confront the petitioner with a show cause notice in which he would disclose the reasons on which the petitioner was not found entitled to be absorbed in the service of the College. The petitioner thereafter will have liberty to not only file reply but also lead evidence wherein he may also show that he had obtained permission of the Bar Council with regard to his simultaneous functioning as Lecturer in the affiliated college and also continue as practicing Advocate. He may also lead other evidence that the petitioner though not having qualification of M.A. in Music he had alternate requisite qualification for the post of lecturer in Music. The petitioner will be given full opportunity to prove his case in the light of the issues 13 raised show cause notice issued by the University. Such exercise must be completed by the Registrar of the University within a period of six months from the date of receipt/production of a copy of this order, whereafter, the report of the Registrar will be placed before the Vice Chancellor of the University and the Vice Chancellor after obtaining approval of the Syndicate will issue final order in the next two months. At this stage, Mr. Singh would submit that appointment of respondent no.9 should also be subjected to the same scrutiny. In the opinion of this Court, now when respondent no.9 has already retired from service there would be no requirement to go into that issue. With the aforementioned observation/direction this application is disposed of. (Mihir Kumar Jha, J.) Patna High Court. The 5th August, 2010. Abhay Kumar/NAFR.