Case: Dr. Akshaibar Lal And Others Vs. The Vice-Chancellor, Banaras Hinduuniversity, And Others.(

The names of the appellants, the posts they held and the gist of the Resolutions passed against them have been set down below :1. Dr. Akshaibar Lal: (C. A. No. 482 of 1960) Reader in College of Agriculture. (Resolution No. 1004 months pay in lieu of notice)2. Dr. Gopal Tripathi: (C. A. No. 482 of 1960) Professor of Chemical Engineering and Principal, College of Technology(Resolution No. 1014 months pay in lieu of notice)3. Pandit Ram Vias Pandey: (C. A. No. 486 of 1960) Reader and Head of Department of JyotishSanskrit Mahavidyalaya(Resolution No. 99Under cls 4 and 7 of the agreement dated March 26, 1931 and Ordinance No. 6 of the Ordinances of the University6 months pay in lieu of notice)4. Dr. Gauri Shankar Tiwari: (C. A. No. 487 of 1960) Lecturer in ChemistryCentral Hindu College (Kamachha)(Resolution No. 1024 months pay in lieu of notice)5. Dr. Ram Deo Misra: (C. A. No. 481 of 1960)Professor and Head of Department of Botany, College of Science(Resolution No. 94under cls. 4 and 7 of the agreement dated February 3, 1959 and Ordinance No. 6 of the Ordinances of the University4 months pay in lieu of notice)6. Mr. Ganesh Prasad Singh: (C. A. No. 483 of 1960) Lecturer in Physical Education, Teachers Training College(Resolution No. 95under cls. 4 and 7 of the agreement dated January 18, 1946 and Ordinance No. 6 of the Ordinances of the University6 months pay in lieu of notice)7. Mr. Radhey Shyam Sharma: (C. A. No. 484 of 1960) Lecturer, College of Technology(Resolution No. 90under cls. 4 and 9 of the agreement dated January 21, 1957 and Ordinance No. 6 of the Ordinances of the University4 months pay in lieu of notice)8. Dr. Ram Yash Roy: (C. A. No. 485 of 1960) Lecturer in Botany, College of Science(Resolution No. 96under cls. 4 and 7 of the agreement dated August 12, 1932 and Ordinance No. 6 of the Ordinances of the University6 months pay in lieu of notice)2. The cases of the appellants are very similar; but fall into two groups as indicated above. The differences are not many, and some of them are indicated in the gist of the Resolutions noted against their names. Other differences will appear from the facts, which are given below3. The affairs of the Benaras Hindu University, for reasons with which we are not concerned, had been deteriorating, and a situation had arisen which required intervention immediately. The President of India, in his capacity as Visitor and in exercise of the powers conferred by S. 5 (2) of the Benaras Hindu University Act, 1915, appointed a Committee of Enquiry (known as the Mudaliar Committee) consisting of :1. Dr. A. L. Mudaliar (President)2. Mr. M. C. Mahajan3. Dr. P. Subbarayan4. Smt. Sucheta Kripalani5. Dr. Nairoji Wadia (Members)to enquire into and report, inter alia, on the general state of discipline in the University, keeping in view the disturbances in some of the Institutions of the University, and to suggest remedies and measures of reform for the betterment of acamedic life and efficient functioning of the University. The Committee made a report suggesting that a "Screening Committee" should be appointed to review the appointments made to the teaching staff and the work of the teaching staff, and that action should be taken in the light of the findings of the Screening Committee4. On June 14, 1958, the President of India promulgated an ordinance (IV of 1958) to amend the Benaras Hindu University Act, 1915. By S. 8 of the Ordinance, the Statutes of the University were amended, and in place of Statute No. 30, another Statute was substituted, which set up a "Screening Committee", consisting of (a) a person who is or has been a Judge of a High Court (Chairman), (b) ther ( Ex officio ) and (c) a person having administrative or other experience in educational matters, to examine the cases of all persons holding teaching administrative or other posts in the University at the commencement of the Ordinance, in respect of whom there was reason to believe that their continuance in office would be detrimental to the interests of the University, and to forward its recommendations to the Executive Council to take such action as it may deem fit5. The Ordinance of the President was repealed by the Benaras Hindu University (Amendment) Act, 1958 (XXXIV of 1958), whichreenactedStatute No. 30 as follows:"30. (1) If the Executive Council has reason to believe that the continuance in office of any person who on the 14th day of June 1958, was holding any teaching, administrative or other post in the University would be detrimental to the interests of the University, it may, after recording briefly the grounds for such belief, refer the case of any such person together with the connected papers, if any, in its possession, to thel to the Government of India :Provided that where an allegation of the nature referred to in thisn relates to a member of the Executive Council who was holding any teaching , administrative or other post in the University on the said date, the Executive Council shall, without considering the allegation, refer the case of such person together with a copy of the allegation, to thel to the Government of India2. If on any such reference thel to the Government of Indiais of opinion that there is a prima facie case for inquiry, he shall refer the case of the person concerned to a Committee to be constituted for the purpose by the Central Government and known as the Reviewing Committee, which shall consist of the following persons, namely :(a) a person who is or has been a Judge of a High Court nominated by the Central Government who shall be the Chairman of the Committee; and(b) two persons nominated by the Central Government from among persons who have had administrative or other experience in educational matters3. It shall be the duty of the Reviewing Committee to examine the case of every person referred to it by the; and the Reviewing Committee shall, after holding such inquiry into the case as it may think fit, and after giving to the person concerned an opportunity of being heard, if he so desires forward its recommendations to the Executive Council4. The meetings of the Reviewing Committee shall be convened by such person as may be appointed for this purpose by the Chairman5. On receipt of the recommendations of the Reviewing Committee, the Executive Council shall take such action thereon as it may think fit :Provided that when the recommendations relate to any such person as is referred to in the proviso ton (1), such person shall not take part in any meeting of the Executive Council in which the recommendations are considered6. Before taking any action against any person on the recommendations of the Reviewing Committee, the Executive Council shall give him a reasonable opportunity of being heard."6. Under the powers granted by this Statute and after sundry procedure, thel sent up the cases of the appellants (and some others, who are not before us) to the Reviewing Committee. The appellants appeared before the Reviewing Committee and represented their cases. Except in the case of Mr. Radhey Shyam Sharma (Civil Appeal No. 484 of 1960), whose case was kept pending because certain matters were sub judice, the Reviewing Committee sent its findings to the University. These findings were considered in respect of the four appellants in Group I (above) and on February 13, 1960 the Executive Council passed Resolutions Nos. 436 to 439 calling upon them to show cause why their services be not terminated, in view of the findings of the Reviewing Committee that the continuance in office of those appellants was detrimental to the interest of the University, which the Executive Council had accepted. These four appellants showed cause on March 5, 1960. No notices were, however, sent to the four appellants in Group II above, and this is one distinguishing feature in the cases7. The four appellants (Group I) filed petitions under Art. 226 of the Constitution (W. Ps. Nos. 712 to 715 of 1960) on March 9, 1960, in the High Court of Allahabad for relief against the proposed action. On the same day, D. S. Mathur, J. passed an ad interim orders as follows :"The respondents Nos. 1 to 3 are directed until further orders, not to take any further proceedings against the petitioners."The Registrar of the University then applied to the High Court, and on April 25, 1960, Jagdish Sahai, J. made the following order"In supersession of the interim order dated, I order that the proceedings before respondent No. 2 Executive Council of Benaras Hindu University, arising out of the recommendations of the Reviewing Committee shall remain stayed."8. On May 15, 1960, the Executive Council of the University passed a number of Resolutions. Resolution No. 89 took into consideration the explanations sent by the four appellants (Group 1) on March 5, 1960, and the order of the High Court, and it was resolved :". . . . . . . . that the consideration of the above cases be postponed till after the writ petitionsd are disposed of by the High Court."9. On the same day, however, Resolutions Nos. 99 to 102 were passed terminating the services of the four appellants (Group I) from June 1, 1960, giving to them four or six months salary, in lieu of notice. In the Resolution concerning Pandit Ram Vyas Pandey, there was a mention that the action was taken under Cls. 4 and 7 of the agreement executed by him and Ordinance No. 6 of the Ordinances of the University. In the remaining three cases, it was not stated under what exercise of powers the action was taken. Even earlier than the notice to show cause issued on February 13, 1960, explanations were called from Pandit Ram Vyas Pandey and Dr. Gopal Tripathi by Resolution Nos. 278 and 281 dated September 9, 1959, and these explanations were ordered to be filed by Resolution No. 103 passed on the same day. Four Resolutions were also passed terminating the services of the other appellants belonging to Group II10. It was after these Resolutions were communicated that the eight petitions were filed by the appellants in the High Court of Allahabad. The High Court by a common judgment, which is under appeal, dismissed all the petitions with costs.

Reasoning: We are not concerned with the Regulations, and no reference need be made to them except to say that they ranked below the Ordinances and had to be consistent with the Act, the Statutes and the Ordinances15. From the above analysis, it is clear that the Act created the Executive Council as an authority and the executive body of the University; but its powers were conferred and its duties were created by the Statutes. The source of powers and duties in respect of the Executive Council was thus the Statutes under the authority of the ActThe High Court was persuaded to read the clause as interpreted by the University and, in our opinion, rightly21. The dispute this time arises from the careless use of the word "or". The Ordinance mentions four reasons for termination of services, which are numbered (i) to (iv). In each of those cases, there is the condition precedent that explanation must be called for and considered. So far, the meaning is clear, even though the drafting is far from commendable. Then follow an and "or" and number (v). The word "or" does not seek to create an option between calling for and considering an explanation and a four months notice, etc. The number (v) and then between "mentioned above" and "or" do not permit this reading. The difficulty, however, does not end thereThe case of the University is that all these orders of termination of service were passed under the power granted by cl. (v) of this Ordinance, modified by the terms of the agreements as they existed23. The result of this analysis shows that the power of the University to terminate the services of the incumbents was derived from (a) agreements, (b) Ordinances, and (c) Statute No. 30. The agreements merely represented the general right of a master to terminate the services of incumbents, where they were subject to agreements, after reasonable notice, without giving any reason. The Ordinances, in addition to preserving that right, gave power to terminate service for proved misconduct, inefficiency or physical unfitness. These powers, unless used according to the stated conditions, were unexercisable, and in the case of a service which was protected against arbitrary action, being permanent, could only be invoked in an appropriate instance. In those cases which would fall within the categories of proved misconduct, inefficiency and physical unfitness, the University was required to take action in accordance with the Ordinance and the RulesIt is not necessary to refer to these cases in detail. It has been laid down recently by this Court that, where the law allows alternative remedies, one or the other or both can be invoked unless one remedy is expressly or by necessary implication excluded by the otherThe University Act expressly makes the Ordinances subject to the Statutes, and in case of any clash between them, the Ordinances must be made to stand down. Further, Statute No. 30 was enacted by Parliament to meet a special situation, and contained a code for dealing with certain special kinds of cases. To that extent, the implication is not only one way, but is also clear. The University could not, having started enquiries under Statute No. 30 abandon the enquiries in midcourse and pass on to something else. This is illustrated by the contradictory Resolutions passed on the same day. In the case of the four appellants belonging to Group I, action under Statute No. 30 was deferred till after the decision of the High Court. But one is tempted to ask what possible further action was contemplated when their services were terminated the same day. It may be pointed out here that dropping of action under Statute No. 30 deprived the appellants of the right to show cause against what had been alleged against them or found by the Reviewing CommitteeWe are not concerned so much with the motives, nor even the justice of the action as with its legality, and, in our opinion, having invoked Statute No. 30 in the special circumstances and having gone on with that procedure, it was not possible to undo everything and rely upon other powers, which were not only subordinate but were clearly not available in those special circumstances which led to action under Statute No. 30To begin with, it is wrong to think that the words conferring discretion are to be read in the abstract. Those words have to be read within the four corners of Statute No. 30. The words are permissive, no doubt, as to the choice of action, but are imperative in so far as they require some act completing the intent and purpose of the enquiry itself. The words "shall take such action thereon as it may think fit" give liberty of action on the recommendations of the Reviewing Committee, but lay a duty to form an opinion. The words do not give a discretion to take action outside the StatuteNone can deny that the University did possess such a power. The question is whether it exercised it correctly under the Statutes and Ordinances. We are quite clear that the Executive Council did not. We may say here that we have not accepted the contention that the action of the Executive Council was based upon malice or any indirect or oblique motiveThe error was in thinking that there were cumulative or alternative powers, even after the adoption of the special procedure under Statute No. 30. We are, therefore, of opinion that the impugned Resolutions were ultra vires and should be quashed.