Dr. Maharaj Singh vs State Of U.P. & Others
2017 Latest Caselaw 4833 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 37
 

 
Case :- WRIT - A No. - 2450 of 2010
 

 
Petitioner :- Dr. Maharaj Singh
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Nisheeth Yadav,C.B. Yadav
 
Counsel for Respondent :- C.S.C.,Anurg Khanna,Krishan Pahal,Neeraj Tripathi
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard Sri Nisheeth Yadav, learned counsel for the petitioner, learned Standing Counsel for the respondent no. 1, Sri Neeraj Tripathi, learned counsel for the respondent no. 2 and Sri Tejashwi Mishra, Advocate, holding brief of Sri Krishan Pahal, learned counsel for the respondent nos. 3 to 6.

The petitioner, who claims to have an outstanding career in the subject of Psychology with several publications to his credit and papers that have been narrated in the writ petition, came to be appointed as a Reader on substantive basis in the respondent-Chaudhary Charan Singh University, Meerut in 1990.

The dispute in the present writ petition is about his having departed to the United States of America on extraordinary leave which the respondent-University contends had been availed of beyond the statutory period and had not been sanctioned. The stand of the University is that since the petitioner absented himself, which amounted to neglect of duty, the Executive Council vide its Resolution dated 7th July, 2007 resolved to terminate the services of the petitioner. The petitioner had earlier come up before this Court challenging his termination order in Writ Petition No. 41341 of 2007 that was dismissed on the ground of alternative remedy to be availed of through a representation before the Chancellor under Section 68 of the U.P. State Universities Act, 1973. The petitioner accordingly, filed his representation before the Chancellor whereafter the Chancellor has rejected the representation on 17th August, 2009 and the present writ petition has been filed assailing the resolution of termination dated 07.07.2007 as well as the order of the Chancellor dated 17th August, 2009.

The contention of the learned counsel for the petitioner is that the entire proceedings are vitiated and so is the order of the Chancellor inasmuch as the petitioner was never put to any notice of any kind calling upon him to give any explanation to the alleged charge of neglect of duty and abandonment of service which has formed the basis of the passing of the Resolution No. 4(2) dated 4th July, 2007. It is urged that the said Resolution records that since three teachers including the petitioner had absented themselves without any proper sanction of leave contrary to the rules, therefore, in view of the provisions of the State Universities Act, the Statutes and Ordinances of the respondent-University, the services of the petitioner were liable to be terminated. It also records that since they had been earlier given a notice and they did not respect the same, therefore they are no longer entitled to continue in service and no further notice is required to be given.

Learned counsel for the petitioner submits that firstly, the petitioner had been continuously sending his leave applications which were in accordance with rules and the respondent-University in the absence of any valid order on the said applications, cannot deny the right of leave to the petitioner including extraordinary leave which is admissible as per Statute 16.18 of the Statutes of the respondent-University. It is therefore, submitted that the inaction on the part of the University cannot be a ground to level a charge against the petitioner of unauthorized absence in spite of the fact that the petitioner had duly intimated the cause of his absence namely the ailment of his wife in the United States of America.

It is urged that this contention of the petitioner and his reason for absence has not even been noticed while passing the impugned Resolution nor any enquiry was conducted prior to the termination of services of the petitioner.

It is urged that not only is the Resolution in violation of the Statutes and Ordinances but even otherwise, there was no agenda circulated amongst the members of the Executive Council for taking up any such issue pertaining to the proposed termination of services of the petitioner. It is urged that in the absence of any agenda, it is not understood as to how the University proceeded to pass a Resolution which aspect was categorically raised even before the Chancellor who has failed to record any finding on the same.

It is then submitted that so far as the procedure for termination is concerned, Chapter-16 and Statute 16.06 in particular requires that no order dismissing, removing or terminating the services of a teacher of the University on any ground mentioned in Clause-I of 16.04 can be undertaken or order passed unless a charge has been framed against the teacher and communicated to him, and has been given an adequate opportunity to defend himself in the manner prescribed in the said Statute. This procedure was never followed by the University and this aspect has neither been answered in the counter affidavit to the writ petition nor has it been dealt with by the learned Chancellor while passing the impugned order. It is, therefore, urged that in the absence of any procedure having been followed, the impugned Resolution cannot be sustained and deserves to be quashed.

Learned counsel further submits that the procedure which has to be followed is not a mere formality as it seriously prejudices the continuance of the petitioner in the services of the University and where the cause is prejudicial, any violation of principles of natural justice, which stands statutorily engrained in the Statute, cannot be avoided on the ground that it would be a useless formality to adopt the same. It is urged that the respondents having acted in gross violation of the procedure prescribed and the said aspect having not bee noticed by the Chancellor, the writ petition deserves to be allowed and the order deserves to be quashed.

A counter affidavit has been filed and the learned counsel for the respondent-University has urged that the petitioner voluntarily absented himself and his absentism also amounts to an abandonment of his post. In such circumstances, this clearly amounts to giving up the employment voluntarily and any procedure as urged on behalf of the petitioner would have been a useless formality, for which reliance has been placed on the judgment of the Apex Court in the case of Vijay S Sathaye Vs. Indian Airlines Ltd. and others (2013) Volume 10 SCC pg. 253 para-16 to substantiate the said submissions. 

It is further submitted that the counter affidavit categorically states that the petitioner along with two other teachers had absented and had neglected their duties as such their services were liable to be terminated which stands established on record inasmuch as it is undisputed that the petitioner was in United States of America and he did not perform his duties in the University. It is also urged that they did not respond to any such notice having been issued and there was no necessity to conduct any further enquiry and also that the Executive Council was well within its jurisdiction to proceed to pass a Resolution for terminating the services of the petitioner. It is therefore, urged on behalf of the University that in the absence of any valid explanation for the neglect of duty and absence, the petitioner does not have any case so as to contend that the respondent-University has acted arbitrarily or in violation of rules.

Sri Neeraj Tripathi, learned counsel for the Chancellor has urged that the aspects relating to the absence of the petitioner has been taken notice of and the manner in which the petitioner has absented himself and did not wait for any sanction of leave has been taken notice of by the Chancellor which clearly amounted to neglect of duty and consequently after having considered his entire background of absence in the University, not only during the period concerned but even prior to that, the petitioner has not responded with any sense of duty keeping in view the important part that he was occupying and consequently, the conclusion drawn by the Chancellor does not suffer from any infirmity. It is, therefore, submitted that the writ petition deserves to be dismissed.

We have considered the submissions raised. The first issue is as to the material on record to establish the consideration of the leave applications of the petitioner. What we find is that the petitioner has categorically asserted the moving of the leave applications for grant of extraordinary leave and further leave to which he was entitled from time to time. The reply given in the counter affidavit nowhere indicates that any decision was taken on the said leave applications of the petitioner and duly intimated to him. The presumption, therefore, is that the University never objected to the leave which was sought by the petitioner within the permissible statutory time which is prescribed and to which the petitioner is entitled. The University seems to have acted on the strength of an assumption that after the expiry of five years of extraordinary leave, the petitioner had failed to respond and join against his post. For this, the petitioner has alleged in the writ petition that he had returned back and had reported joining whereafter the University did not respond favourably. The petitioner has stated in para no. 21 that he joined his services on 15th May, 2006 but he was not assigned any duty. There is no plausible reply given to the said paragraph in the counter affidavit except that no permission was taken from the Vice Chancellor and the Executive Council and further that the respondent simply disagreed by what has been stated by the petitioner. We have been unable to find any valid explanation or response in the counter affidavit to the said stand taken by the petitioner nor do we find any such consideration in the order of the Chancellor.

The second aspect of the matter is that the provisions as contained in the Statutes for terminating the services are clearly to the effect that no order of termination can be passed unless a charge has been framed, enquiry conducted and the same results in an acceptance by the Executive Council through a Resolution. In the instant case, no such procedure has been admittedly followed except for a Resolution being passed by the Executive Council on the presumption that since the petitioner did not respond to a notice, the services deserves to be terminated.

We are unable to subscribe to the said stand of the University inasmuch as even if the petitioner had not responded to any notice issued earlier, it was incumbent on the respondent-University to have put the petitioner to further notice about holding of any enquiry as is envisaged under Statutes 16.06 which does not appear to have been done at all. It is not the case of the University that the petitioner did not participate in any enquiry or did not cooperate with the University. Consequently, we are of the opinion that the procedure having not been followed, the Resolution of the Executive Council is not in conformity with the Statutes.

There is a third dimension namely what we find is that all of a sudden the matter is taken up by the Executive Council in the meeting dated 4th July, 2007. There is no previous agenda. This aspect was clearly pleaded even before the Chancellor but we do not find any plausible answer for the same. No finding has been recorded nor any response has been given in the counter affidavit of the respondent-University to this aspect. Thus, the very procedure of passing of a Resolution without any agenda and without any opinion having been obtained in this regard from any enquiry proceeding clearly vitiates the passing of such a Resolution insofar as the petitioner is concerned.

Coming to the decision cited at the bar by the learned counsel for the University, what we find is that this is not a case where the useless formality theory can be pressed into service inasmuch as the petitioner is being charged of neglect of duty followed by an alleged abandonment. The petitioner has come up with an explanation that he was entitled to leave and the respondent-University having not passed any order in relation to his leave applications, even assuming that it was beyond the period which was required, the same does not qualify for the respondents to say that this would have been a useless formality. The explanation of the petitioner had to be taken into account and for which the learned counsel for the petitioner has rightly relied on the judgment in the case of Banaras Hindu University and others Vs. Shrikant 2006 Volume 11 SCC page-42 where the Apex Court has held that even in the case of abandonment of service, an enquiry has to be held. The question, therefore, is no longer res integra as in the present case, the respondent-University has clearly violated the provisions of law and has failed to give any reason as to why it did not hold any enquiry in the the matter and pass the Resolution even without any agenda.

For all the aforesaid reasons, we also find that the learned Chancellor has failed to take into account the aforesaid aspects and the order of the Chancellor is, therefore, liable to be set aside.

The writ petition is, accordingly, allowed. The impugned Resolution dated 4th July, 2007 as communicated on 7th July, 2007 is quashed. The order of the Chancellor dated 17th August, 2009 is also set aside.

Accordingly, the writ petition is allowed with all consequential benefits to the petitioner.

Order Date :- 22.9.2017

Sumit S