Case: V.C., Banaras Hindu University  Vs. Shrikant

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 10 of the Act, inter alia, provides for constitution of an Executive Council as 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 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.2. 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 28.2.2001. For this purpose, she made an application 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 leaveCompensatory 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(iii) Compensatory leave 10.6.2000 to 30.6.2000 (i.e. Leave in lieu of duties performed on off-days, holidays andRecommendations 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 University with the followingthe information given above has been checked from the document/records and found correct.(ii) The examination, teaching and other allied works of the department will not suffer and leave is recommended.The purpose of the Respondents 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 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. 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 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 terminated 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 summer season, Air reservation was not available before 19.6.2000 and 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 from 1.3.2000 and the Institute had already taken a decision in that behalf.5. 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 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, 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 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 15.3.2001. However, the matter was not placed before the Executive Council for a long time and ultimately he filed a Contempt Petition.6. It is not in dispute that the Executive Council adopted a resolution on 8.1.2003 although the same was confirmed later on.7. 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.

Reasoning:
61. The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated,is an antithesis to rule of law, equity, fair play and justice contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-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 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, holdinglimited 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.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 term5(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 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 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.65. 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 employee admittedly continuing to live in Libya, the extension of leave sought for was bound to be refused.66. 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 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.67. 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.68. For the reasons abovementioned, we do not find any merit in the appeal filed by the University. However, so far as appeal of the Respondent is concerned, although the conduct of the University is deplorable having regard to the fact that the Respondent has suffered a lot and has not been allowed to join his duties for a long time and keeping in view the facts and circumstances of this case, we are of the opinion that his back wages should be restricted to 75%. The Respondent shall also be entitled to costs of the appeal. Counsels fee is assessed at Rs.10,000/-.