V.C., Banaras Hindu University & Ors vs Shrikant

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.

Before we advert to the rival contentions raised before us, we may notice some of the notifications issued by the Executive Council of the University. The Executive Council purported to be taking note of the rampant practice by the faculty members availing leave including leave for going abroad without prior sanction/permission of the competent authority, in violation of the provisions of the leave rules and instructions issued from time to time took a decision that the Head of the Department should not allow the faculty Members to avail leave without prior sanction and permission of the Vice Chancellor irrespective of the nature of leave applied for (including vacations), failing which the same would be considered as "misconduct" and action shall be initiated as per rules.

Such an error of law is capable of being rectified by judicial review. Reasonableness in the order and/or fairness in the procedure indisputably can also be gone into by the writ Court.

The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated, stating:-

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.

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.

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. Counsel's fee is assessed at Rs.10,000/-.

In the result, Civil Appeal No. 4147 of 2003 is dismissed whereas Civil Appeal No. 248 of 2004 is allowed in part.