IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.- 6039 of 2008. Reserved on: 03.09.2009. Decided on : 11.9.2009. Dr. Brij Behari Lal Kaushal. …….. Petitioner. Versus Dr. Y.S. Parmar University of Horticulture & Forestry, Nauni, District Solan (H.P.), through its Registrar. ………Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1 Yes. For the petitioner : Mr. H.K. Paul, Advocate. For the respondent : Mr. Onkar Jairath, Advocate. Rajiv Sharma, Judge: Brief facts necessary for the adjudication of this petition are that the petitioner was working as Assistant Scientist (Horticulture) under the Himachal Pradesh University (Agricultural Complex Palampur). He was sent on deputation for undertaking Ph. D. in Agriculture (Pymology) at I.A.R.I., New Delhi under Faculty Upgradation Scheme. The necessary certificate to this effect was issued by the Dean Agricultural Complex vide Annexure A-3 on 22nd June, 1978. The Deputy Registrar has informed the Associate Whether reporters of local papers may be allowed to see the judgment? Yes. : 2 : Dean, College of Agriculture, Solan on 3rd September, 1978 that the Executive Council on the recommendation of the Board of Management has decided to send the petitioner as an inservice candidate for his Ph. D. admission. The text of letter dated 3rd September, 1978 reads thus: “I am directed to inform you that Executive Council on the recommendation of the Board of Management has been pleased to send Shri Brij Bihari Lal, Assistant Scientist (Hort.) as inservice candidate for his Ph. D. admission under their Faculty Upgradation Scheme. He shall be entitled to study leave in accordance with Ordinance 36.22 from the date of availing. You are requested to please relieve him accordingly after completing the codal formalities.” The petitioner was granted study leave for two years w.e.f. 11.9.1978 to 10.9.1980 for undergoing Ph. D. under I.A.R.I. Feculty Upgradation Scheme vide Annexure R-1. Thereafter, vide office order dated 29th April, 1981 (Annexure R-2), the petitioner was sanctioned following kinds of leave: (i) 11.9.1980 to 2.1.1981 { (ii) 5.2.1981 to 14.10.1981 { Study leave. (iii) 3.1.1981 to 3.2.1981 { Leave of kind due. In continuation of office order dated 29th April, 1981 (Annexure R-2), the Vice-Chancellor was pleased to sanction : 3 : the following kinds of leave in favour of the petitioner vide Annexure R-3: Earned Leave : 15.10.1981 to 11.2.1982=120 days. Half Pay Leave : 12.2.1982 to 10.10.1982=240 days. The Resident Audit Officer raised audit objection to the sanctioning of the leave to the petitioner, as discussed hereinabove, on 18.6.1982. The primary objection of the Resident Audit Officer was that the sanctioning of the study leave to the petitioner was in violation of statute 6.26(6) of the 1st Statute of Himachal Pradesh Krishi Vishwa-Vidlaya. According to him, there must be five years gap between two spells of study leave. The matter was also reported to the Board of Management of Himachal Pradesh Krishi Vishva-Vidalaya in its meeting held on 18.9.1984. The Board observed that study leave granted to the petitioner in two spells was for the same purpose and should be considered as continuous. The University sent the communication to the Resident Audit Officer on 27th September, 1986. It was clearly stated therein that the case of the petitioner was covered under Ordinance 36.22 of Himachal Pradesh University, whereby a teacher could be granted study leave upto two years which could be extended on the recommendation of the Executive Council (Board of Management in the case of HPKVV). The text of letter dated 27th September, 1986 reads thus: “I am to refer to your letter No. RAO/SLN/86-87/-271 dated 21.7.1986, on the above cited subject and to state that even if it may be : 4 : conceded that study leave combined with other kinds of leave except extra ordinary leave, as laid down in Statute 6.26(5) and 6.26(13) of the 1st Statute of H.P. Krishi Vishwa Vidyalaya is not to exceed three years, the same is not applicable in the case of Shri B.B. Lal who was allowed to proceed on study leave prior to the establishment of HPKVV i.e. w.e.f. 11.9.1978, when Himachal Pradesh University Ordinance No. 36.22 was applicable to Shri B.B. Lal. Vide Ordinance 36.22 of the Himachal Pradesh University, a teacher could be granted study leave upto two years which could be extended on the recommendation of the Executive Council (Board of Management in the case of HPKVV). Since the Board of Management duly considered and approved the grant of study leave to Shri B.B. Lal for completing his Ph. D. as conveyed by the Registrar, HPKVV vide his letter No. 6-74/75- HPKVV (Estt.)/-1328-30 dated 9.1.1985 the study leave case of Shri B.B. Lal, Assistant Scientist (now Horticultural Technologist) needs therefore, to be dealt with in the light of H.P. University study leave rules as mentioned above. In view of this Audit may settle their audit Requisition/audit para accordingly, especially when this is an isolated case and there is no other case pending in which the teacher was granted study leave prior to the establishment of HP Krishi Vishva Vidyalaya in whose case the extension of study leave exceeded 3 years.” : 5 : However, it appears that the Resident Audit Officer did not change his stand and the respondent-University was constrained to issue Annexures R-5 and R-6 to the petitioner on 24.4.1992 and 22.10.1992. He was called upon to adjust over paid amount. The petitioner served a legal notice upon the Registrar on 25.12.1992. The same was replied by the Registrar on 27th January, 1993. Thereafter, vide letter dated 5th June, 1993 (Annexure A-1), the Vice-Chancellor was pleased to order the recovery of amount of Rs.12072-85/- on account of study leave from the salary of the petitioner in 48 monthly installments of Rs.251/-. Mr. H.K. Paul, Advocate has vehemently argued that the petitioner has not been heard before the decision has been taken by the respondent-University to effect recoveries from his client’s salary. He then contended that the case of the petitioner has supported by the respondent-University. According to him, the case of the petitioner was governed under Ordinance 36.22 of Himachal Pradesh University and not under Statute 6.26(6) of Himachal Pradesh Krishi Vishva-Vidalaya. He then argued that the respondent-University has misconstrued the provisions of Statute. According to him, the petitioner had availed study leave for doing one single course. Mr. Onkar Jairath, Advocate has relied upon Statute 6.26(6) to justify the recoveries to be effected from the salary of the petitioner. : 6 : I have heard the learned counsel for the parties and have gone through the pleadings carefully. The petitioner has proceeded to undertake Ph. D. course on the strength of Annexures A-3 and A-7 dated 22.6.1978 and 3.9.1978. The study leave and other leaves were sanctioned in favour of the petitioner on the basis of Annexures R- 1, R-2 and R-3 dated 17.10.1978, 29.4.1981 and 13.11.1981. The Resident Audit Officer has misconstrued the provisions of Statute 6.26(6) of the 1st Statute of Himachal Pradesh Krishi Vishva-Vidalaya while raising audit objection. He has overlooked vital aspect that the petitioner has availed the study leave for doing one course, i.e., Ph. D. in Agriculture (Pymology). There was no gap as canvassed by the Resident Audit Officer. The Resident Audit Officer has been explained by the respondent- University in clear terms vide letter dated 27th September, 1986 that the case of the petitioner was to be governed under Ordinance 36.22 of Himachal Pradesh University. According to the Ordinance 36.22, the petitioner could be granted study leave upto two years which could be extended on the recommendation of the Executive Council. The Board of Management has duly considered and approved the grant of study leave to the petitioner. The Krishi Vishva-Vidalaya has come into existence after the study leave was already stood sanctioned to the petitioner. The Board of Management has also supported the case of the petitioner in its : 7 : meeting held on 18.9.1984 as per the contents of the reply filed by the respondent-University. The petitioner has not been heard before the decision was taken by the respondent-University to recover a sum of Rs. 12,072.85/- from the petitioner. The petitioner has only been called upon vide letters dated 24.4.1992 (Annexure R-5) and dated 22.10.1992 (Annexure R-6) to adjust the amount. It is well settled by now that every order which has civil consequences must be passed in conformity with the principles of natural justice. The order dated 5.6.1993 (Annexure A-1) issued without following the principles of natural justice is null and void. The respondent-University has given undue importance to the objections raised by the Auditor. The final decision is required to be taken by the University. The University has reversed its earlier decisions, i.e., Annexures R-1, R-2 and R-3, whereby study leave and other kinds of leave were sanctioned to the petitioner on 24.4.1992. It is in view of the issuance of Annexure R-4 dated 24th April, 1992 that the petitioner was required to refund a sum of Rs.12,072.85/-. What emerges from the above discussion, is that the petitioner’s case was required to be considered for sanctioning study leave and other kinds of leave as per Ordinance 36.22 of the : 8 : Himachal Pradesh University and not on the basis of Statute 6.26(6) of the Himachal Pradesh Krishi Vishva-Vidalaya, Palampur. The petitioner has not been heard before the issuance of order dated 5.6.1993 (Annexure A-1). Accordingly, in view of the observations made hereinabove, the petition is allowed and Annexure A-1, dated 5.6.1993 is quashed and set aside. No costs. (Rajiv Sharma), J. September 11,2009. (bhupender)