Pawan Kumar vs Vice Chancellor B.H.U. Varanasi & ...
2015 Latest Caselaw 604 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 25
 

 
Case :- WRIT - A No. - 6102 of 2002
 

 
Petitioner :- Pawan Kumar
 
Respondent :- Vice Chancellor B.H.U. Varanasi & Others
 
Counsel for Petitioner :- Dinesh Chandra Mishra,D.C. Srivastava
 
Counsel for Respondent :- V.K. Upadhyay,Pankaj Naqvi,S.C.,Sunil Tripathi
 

 
Hon'ble Surya Prakash Kesarwani,J.

1- Heard Sri Dinesh Chandra Mishra, learned counsel for the petitioner and Sri Sunil Tripathi, learned counsel for the respondents.

2- This writ petition has been filed praying for the following reliefs :

"(i)     issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 18.8.2000 and 19/23.10.2001 (Annexure 1 and 2) of the writ petition passed by respondent no.1 ;

(ii)    issue a writ, order or direction in the nature of mandamus directing the respondents to reinstate the petitioner ;

(iii)   issue a writ, order or direction in the nature of mandamus directing the respondents to pay the back wages and also to continue to pay the further salary ;

(iv)   issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case ;

(vi)   award cost of the petition to the petitioner."

3- Learned counsel for the petitioner submits that the impugned order dated 18.8.2000 and 19/23.10.2001 were passed by the Vice Chancellor, BHU, Varanasi, respondent no.1 without considering the reply of the petitioner and without recording any reason for not accepting the reply/explanation for his absence. The order dated 19/23.10.2001 is beyond jurisdiction, inasmuch as the appeal could have been decided only  by the executive council in view of the specific provision of the Second proviso to Section 7-C(5) of Banaras Hindu University Act, 1915 (hereinafter referred to  as the 'Act'). The approval dated 10.10.2002 given by the Executive committee of the order of the Vice Chancellor, BHU, Varanasi dated 19/23.10.2001, was also wholly arbitrary and illegal and beyond the powers conferred under Second Proviso to Section 7C (5) of the Act. He submits that the services of the petitioner was terminated without following due procedure of law and without considering the explanation of the petitioner and as such the impugned order passed by the respondent no.1 deserves to be set aside. He further submits that the entire action of the respondent in terminating the services of the petitioner were wholly arbitrary, illegal and in gross violation of principles of natural justice, equity and fair play.

4- Learned counsel for the respondents submits that the Vice Chancellor has considered the representation of the petitioner and thereafter passed the order and as such the impugned order cannot be said to be arbitrary, illegal or without consideration to the representation/reply of the petitioner. He submits that the appeal of the petitioner was decided by the respondent no. 1 in exercise of emergency power conferred under Section 7-C(5) of the Act and the executive council granted approval to the said order and as such the impugned orders are wholly valid.

5- He also read the entire impugned order dated 18.8.200 and 19/23.10.201 passed by respondent no.1. He could not point out even a single line in both the orders to show that the reply of the petitioner dated 5.5.2000 to the office memorandum dated 26/27.4.2000  or his representation/appeal were considered.

6- I have considered the submissions of the learned counsel for the parties.

7- Briefly stated the facts of the present case are that the petitioner was appointed as peon in the faculty of Law by the respondent University vide appointment letter dated 27.11.1984 issued by the Assistant Registration (Administration). An office memorandum dated 26/27.4.2000 was issued by the Registrar (Administration )BHU, Varanasi, requiring him to explain that why his services be not terminated on account of his absence without leave on certain dates between 17.3.1998 to 23.12.1999. In this office memorandum itself it is mentioned that during the period 20.4.1999 to 13.8.1999 and for the period 3.12.1999 to 23.12.1999, the petitioner was on medical leave and for the period from 5.11.1999 to 27.11.1999, he availed earned leave. Thus, the only allegation  in the aforesaid office memorandum/show cause notice against the petitioner remains for his absence for 49 days between the period 17.3.1998 to 16.1.1999.

8- The petitioner undisputedly submitted a reply dated 5.5.2000 before the authority concerned in which he clearly mentioned that for the days of his absence notices were issued to him and the reply was submitted by him on 16.4.1988, 29.8.1999, 15.10.1999 and 16.2.2000. He specifically stated in the said reply that he was totally  helpless due to his illness being a neurology patient and for that reason, he submitted leave application along with medical certificates from time to time before the Administrative Warden of Lohiya Hospital, where he was posted. It was also specifically stated in the said reply that the Administrative Warden orally directed him not to sign the attendance register and relieved him on 30.11.1999 and thereafter, he was deputed in the office of the Deputy Registrar, BHU, Varanasi. Explaining the allegations of the show cause notice he also specifically stated that under the facts and circumstances of the case his explanation may be considered sympathetically. However, on receipt of the said reply dated 5.5.2000, the Registrar (Administration ), BHU, Varanasi sent the impugned order dated 18.8.2000 to the petitioner in which there was absolutely no consideration to the reply of the petitioner.

9- The punishment of termination from service was awarded to the petitioner by the impugned order dated 18.8.2000 merely making one line observation that the Vice Chancellor, BHU, Varanasi, respondent no.1 has carefully considered the reply of the petitioner  dated 5.5.200 on merits and found it to be unsatisfactory and terminated the services of the petitioner with immediate effect. For ready reference the relevant portion of the impugned order dated 18.8.2000 is reproduced below :

^^;g fd Jh iou dqekj mijksDr us vius i= fnukad 5&5&2000 }kjk mi;qDrZ dk;kZy;h; Kkiu dk mRrj fn;kA

vkSj ;g fd Jh iou dqekj us mijksDr mRrj ds vkaXy vuqokn dks dqyifr dk0fg0fo0fo0 }kjk lko/kkuh iwoZd xq.k ,oa nks'k ds vk/kkj ij foLrkjiwoZd fopkj fd;k x;k vkSj ;g ik;k x;k fd mijksDr Jh iou dqekj dk mi;qDrZ mRrj vlUrks'ktud gS rnuqlkj dqyifr egksn; dk0fg0 fo0fo0 us ;g vkns'k ikfjr fd;k gS fd mijksDr Jh iou dqekj dh lsok, bl fo'ofo?kky; ls rRdkfyd izHkko ls lekIr dj nh tk;sA^^

10- Aggrieved with this order, the petitioner filed Civil Misc.Writ Petition No.40830 of 2000, which was disposed of by this Court vide order dated 12.9.2000 as under :

"Shri V.K. Upadhyay, Senior Standing Counsel has raised a preliminary objection that against the impugned order the petitioner has alternative remedy under Clause-15 before the Executive Council. The writ petition is dismissed on the ground of alternative remedy. The petitioner is directed to file an appeal before the Executive Council within two weeks from today, who will consider and decide the same within two months thereafter."

11- As per Second Proviso to Section 7C(5) of the Act, where the action taken by the Vice Chancellor affects any person in service of the University such  person shall be entitled to prefer within 30 days from the date on which he receives notice of such order, an appeal to the executive council.

12- Since, the order dated 18.8.200 was passed by the Vice Chancellor, which was communicated by the Registrar of the University to the petitioner and as such in compliance to the order of this Court dated 12.9.2000 passed in Writ Petition No.40830 of 2000, the petitioner preferred an appeal before the Executive Council in terms of the Second Proviso to Section 7C(5) of the Act, a copy of which has been filed as Annexure-12. The appeal of the petitioner was rejected by the respondent no.1 by the impugned order dated 19/23.10.2001 passed by the respondent no.1, Vice Chancellor, allegedly in exercise of power under Section 7C(5) of the Act, which was wholly without jurisdiction since, the Second Proviso to Section 7-C(5) of the Act empowered merely the executive council to decide appeal against the order of the Vice Chancellor. For ready reference the provisions of Section 7-C(5) of the Act, are reproduced below.

"7-C(5) If, in the opinion of the Vice-Chancellor, any emergency has arisen which requires immediate action to be taken, the Vice-Chancellor shall take such action as he deems necessary and shall report the same for approval at the next meeting to the authority which, in the ordinary course, would have dealt with the matter :

Provided that, if the action taken by the Vice-Chancellor is not approved by the authority concerned, he may refer the matter to the Visitor, whose decision thereon shall be final :

Provided further that, where any such action taken by the Vice- Chancellor affects any person in the service of the University, such person shall be entitled to prefer, within thirty days from the date on which he receives notice of such action, an appeal to the executive Council."

13- Thus, the Second Proviso to Section 7C(5) of the Act entitles a person aggrieved with the order of the Vice Chancellor to prefer an appeal before the Executive Council. It does not authorise the Vice-Chancellor to hear and decide the appeal against his own order. An appeal under the Second Proviso to Section 7-C(5) of the Act, lies to the Executive Council and, therefore, the Vice-Chancellor, can not decide such an appeal. Since, the action of the Vice-Chancellor to hear and decide the appeal is beyond the powers conferred under Section 7-C(5) of the Act, and therefore, the defect of lack of power shall not cure even if, subsequently, the Executive Council approves his order.

14- Apart from above, in the impugned appellate order dated 19/23.10.2001, the Vice- Chancellor, respondent no.1, merely quoted the order, the reports of the Administrative Warden and the fact of issuance of notices and thereafter observed that the emergency power under Section 7-C(5) of the Act, is being invoked as it is not clear as to when the new  executive council shall be constituted. After noting the reports and the fact of issuance of notice etc. and without consideration to either the explanation of the petitioner given in the reply dated 5.5.2000 or the grounds raised in the memorandum of appeal, the respondent no.1 rejected the appeal as under :

  "In view of the above, I Y.C. Simhadri, Vice Chancellor, Banaras Hindu University, considered the aforesaid representation dated 22.9.2000 of Shri Pawan Kumar, Ex-peon Department of civil Engineering-II-BHU son of late Munnu Ram, House No.D-35/270, Khari Kuan Jagambari, Varanasi in detail and on merit and arrived at the conclusion that his representation has no merit, and stands disposed of accordingly. The matter be reported to the Executive Council."

15- Thus, besides the fact that the appellate order was unauthorisedly passed by the Vice-Chancellor, respondent no.1, no reasons, whatsoever, were recorded either for not accepting the reply of the petitioner dated 5.5.2000 or for rejecting the grounds raised in the memorandum of appeal. He merely observed that the case of the petitioner was considered on merit and he arrived at the conclusion that the representation has no merit. Such an order can only be termed to be wholly arbitrary and illegal. It does not contain any reason for the conclusions reached. Thus, the impugned order was passed without application of mind and in breach of principles of natural justice.

16- During the course of hearing this Court requested the learned counsel for the respondents to read the entire impugned order dated 18.8.2000 and the impugned appellate order dated 19/23.10.2001 and to point out consideration of either reply of the petitioner or the grounds raised in the memorandum of appeal by the respondent no.1. Both the orders were read by the learned counsel for the respondents, but he could not point out even a single line either considering the reply of the petitioner dated 5.5.2000 or considering the grounds raised in the memorandum of appeal.

17- In the case of M/s. Hindustan Steels Ltd. Rourkela Vs. A.K. Roy and others, (1969) 3 SCC 513, Hon'ble Supreme Court held in para 16 as under :

"12. On a consideration of all the circumstances, the present case, in our view, was one such case. The Tribunal exercised its discretion mechanically without weighing the circumstances of the case. That was no exercise of discretion -at all. There is ample authority to the effect that if a statutory tribunal exercises its discretion on the basis of irrelevant considerations or without regard to relevant considerations, certiorari may properly issue to quash its order. [See S.A. de Smith, Judicial Review of Administrative Action, (2nd ed.) 324-325]. One such relevant consideration, the disregard of which would render its order amenable to interference, would be the well- settled principles laid down in decisions binding on the tribunal to whom the discretion is entrusted. The refusal by the High Court to interfere was equally mechanical and amounted to refusal to exercise, its jurisdiction. Its order, therefore, becomes liable to interference."

(Emphasis supplied by me)

18- In the case of Omar Salay Mohd. Sait Vs. Commissioner of Income Tax, Madras, AIR 1959 SC 1238, Hon'ble Supreme Court held in para 42 as under :

"42. We are aware that the Income-tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusions of fact after due consideration of the evidence before it this court will not interfere. It is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it.The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures or surmises and if it does anything of the sort, its findings, even though on questions of fact, will be liable to be set aside by this court."

(Emphasis supplied by me)

19- In the case of Udhav Das Kewat Ram Vs. CIT 1967 (66) ITR 462, Hon'ble Supreme Court held that Tribunal must consider with due care all material facts and record its findings on all contentions raised before it and the relevant law.

20- An order without valid reasons cannot be sustained. To give reasons is the rule of natural justice. Highlighting this rule, Hon'ble Supreme Court held in the case of The Secretary & Curator, Victoria Memorial v. Howrah Ganatantrik Nagrik Samity and ors., JT 2010(2) SC 566 para 31 to 33 as under :

"31. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice - delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind." [Vide State of Orissa Vs. Dhaniram Luhar (JT 2004(2) SC 172 and State of Rajasthan Vs. Sohan Lal & Ors. JT 2004 (5) SCC 338:2004 (5) SCC 573].

21- Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons in the impugned order renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. [Vide Raj Kishore Jha Vs. State of Bihar & Ors. AIR 2003 SC 4664; Vishnu Dev Sharma Vs. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. Vs. Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. Vs. Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal Vs. State of Haryana & Ors. (2009) 3 SCC 258; Mohammed Yusuf Vs. Faij Mohammad & Ors. (2009) 3 SCC 513; and State of Himachal Pradesh Vs. Sada Ram & Anr. (2009) 4 SCC 422].

22- Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. It enables the person adversely affected to know, that why his application/appeal has been rejected.

23- Non recording of reasons, non consideration of admissible evidence or consideration of inadmissible evidence renders the order to be unsustainable. Hon'ble Supreme Court in the case of Chandana Impex Pvt. Ltd. Vs. Commissioner of Customs, New Delhi , 2011(269) E.L.T. 433 (S.C.)(para 8) held as under :

"8. Having bestowed our anxious consideration on the facts at hand, we are of the opinion that there is some merit in the submission of learned counsel for the appellant that while dealing with an appeal under Section 130 of the Act, the High Court should have examined each question formulated in the appeal with reference to the material taken into consideration by the Tribunal in support of its finding thereon and given its reasons for holding that question is not a substantial question of law. It needs to be emphasised that every litigant, who approaches the court for relief is entitled to know the reason for acceptance or rejection of his prayer, particularly when either of the parties to the lis has a right of further appeal. Unless the litigant is made aware of the reasons which weighed with the court in denying him the relief prayed for, the remedy of appeal will not be meaningful. It is that reasoning, which can be subjected to examination at the higher forums. In State of Orissa Vs. Dhaniram Luhar2 this Court, while reiterating that reason is the heart beat of every conclusion and without the same, it becomes lifeless, observed thus

:

"8.......Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made;......."

(Emphasis supplied by me)

24- The executive council is said to have approved the appellate order of the Vice Chancellor dated 19/23.10.2001 by the impugned order dated 10.10.2002, a copy of which has been filed as Annexure-1 to the amendment application. This order has also been passed in four lines as under :

"CONSIDERED the orders dated 19th October, 2001 of the Vice-Chancellor in exercise of the powers vested with him under Section 7C(5) of the BHU Act, disposing of representation of Sri Pawan Kumar in compliance to the orders dated 12.9.2000 of the Hon'ble High Court of Judicature at Allahabad in writ petition No.40830 of 200.

RESOLVED that the orders dated 19th October of the Vice Chancellor in exercise of the powers vested with him under Section 7C(5) of the BHU Act, disposing of representation of Sri Pawan Kumar in compliance of the orders dated 12.9.2000 of the Hon'ble High Court of judicature at Allahabad in writ petition No.40830 of 2000 be approved."

25- Apparently, the executive council treated the order of the respondent no.1, Vice- Chancellor dated 19/23.10.2001 to be an order on the representation of the petitioner and not an appeal under the Second Proviso to Section 7-C(5) of the Act, whereas the fact was that it was an appeal filed by the petitioner against the order of the Vice-Chancellor dated 18.8.2000.

26- From the facts on record and the arguments advanced by the learned counsel for the parties, it is clear that the respondents have arbitrarily and illegally terminated the services of the petitioner and dragged him in litigation for about 15 years, who was a Class-IV employee. They have not even decided the appeal of the petitioner in accordance with law despite the orders of this Court and the respondent no.1 rejected it mechanically and without authority of law.

27- Under the facts and circumstances of the case and in view of the settled position of law, as discussed above, the order dated 18.8.200 and 19/23.10.2001 passed by the Vice-Chancellor, BHU, Varanasi, respondent no.1 as well as the order of approval of the Executive Council dated 10.10.2002 deserve to be set aside and the writ petition deserves to be allowed with costs.

28-In result, the writ petition succeeds and is hereby allowed with all consequential benefits legally admissible to the petitioner with costs of Rs.25,000/-. The respondent no.1 shall pay cost to the petitioner within one month.  The orders dated 18.8.2000 and 19/23.10.2001 passed by the Vice-Chancellor, BHU, Varanasi, respondent no.1, as communicated by the Assistant Registrar of the Banaras Hindu University, Varanasi, and the order of approval dated 10.10.2002 passed by respondent No.6 are hereby set aside. The petitioner shall be reinstated in service within one month, if he has not attained the age of superannuation.

Order Date :- 21.5.2015

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