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TMI Blog2006 (5) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... the Statute. 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 leave : "(i) Compensatoryleave 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 and vacations)" Recommendations were made and forwarded on 21.2.2000 by the Director of the Institute being the Head of the Department, who was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent 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 Executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d his service. It was further submitted that having regard to the fact that the High Court had directed the Executive Council to dispose of the Respondent's representation which having been done by resolution dated 9.1.2003 and the same having been confirmed on 23.3.2003 and the same having not been challenged by the writ petitioners, the impugned judgment cannot be sustained. It was next contended that the High Court admittedly proceeded on the basis that the Respondent is guilty of misconduct and in that view of the matter, no direction for his reinstatement in services without back wages could have been issued and, therefore, it was necessary for it to arrive at a finding that the punishment awarded by the University was shockingly disproportionate. In any event, the High Court should have remitted the matter back to the disciplinary authority for imposing appropriate punishment on the Respondent. Mr. Jaideep Gupta, learned senior counsel appearing for the Respondent, on the other hand, submitted that the University admittedly did not proceed on the basis that the Respondent committed an act of misconduct. The question, according to Mr. Gupta, on the aforementioned premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 32 for all employees of the University other than teachers." Admittedly, the procedure laid down for imposition of major penalty had not been followed in the instant case. The Respondent, thus, had not been proceeded against for commission of any misconduct. The sole question, which, therefore, arises is as to whether in the facts and circumstances of this case, the notification could be invoked against the Respondent. Although in the application for grant of special leave to appeal, it is stated that various circulars/letters were issued upon adopting resolutions by the Executive Council but before us only two notifications have been produced. The first one was issued on 5-10/9/1990 whereby and whereunder the existing Clause of 10.5 of the Ordinance stood amended in the following terms: "10.5. Whenever a teaching/Non-teaching employee fails to return to the University within forty five days of the expiry of leave duly granted to him, his services shall be deemed to have been abandoned by him from the date the leave expires. Provided that the Executive Council on good cause being shown by the concerned employee may waive the abandonment on such terms as the Council may decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices, as also disciplinary action, are governed by the statute/Ordinance. In fact, no provision relating to abandonment of service has been inserted in the ordinance as had been done by way of Clause 10.5 in terms of notification dated 5-10/September 1990. It, however, stands admitted that the said ordinance is not attracted in the instant case. We, therefore, are required only to consider as to whether the notification dated 25.3.1998 is attracted in this case. The said notification was issued only by way of guidelines. It is sub-divided into two parts; whereas the first part provides for consequences of overstay without permission for more than 45 days at different points of time, the second part relates to the employees who have overstayed without permission for more than 45 days from the date of issue of the University resolution. Only in regard to the second part, it was stated that the services of such employees "would be abandoned as per the existing rules". The expression 'existing rules' indisputably would mean the procedure laid down under the rules, i.e., in terms of the provisions of the Statute or Ordinance, which as indicated hereinbefore lay down matters r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was further noticed: "Executive instructions can supplement a statute or cover areas to which the statute does not extend. But they cannot run contrary to statutory provisions or whittle down their effect." Even otherwise, the said purported notification dated 25.3.1998 does not and/or cannot create a new misconduct and/or provide for a legal fiction providing that the employee would be deemed to have abandoned his service. The said notification was issued for laying down certain guidelines and, thus, by reason thereof no independent misconduct could be created. The purpose for issuing the said circular evidently was to lay down broad guidelines in regard to the quantum of punishment which should be imposed, as would be evident from the fact that Section (A) thereof deals with the cases of those employees who had gone abroad without prior permission (which itself is a misconduct) and overstaying the leave for more than 45 days. The quantum of punishment has been specified for commission of misconduct for the first, the second, the third and the fourth time. Section (B) thereof deals with the cases of those employees, who have overstayed abroad without prior permission for more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e.f. 1.3.2000. It is significant to note that a copy of the said letter was forwarded to the Respondent at the address of his wife. According to the Respondent, he did not receive the letter before 31.5.2000 but we are not concerned therewith. Yet again, the Vice Chancellor, by office memo dated 4.5.2000, stated : "AND WHEREAS, the aforesaid Dr. Shri Kant in the above mentioned communication finally prays for submission to avail summer vacation and assures to join immediately thereafter. AND WHEREAS, all the above facts show that the aforesaid Dr. Shri Kant has admittedly unauthorisedly proceeded on leave without any sanction and also without permission of the competent authority, which is against the Univesity rules and directives issued by the University to regulate foreign visits. AND WHEREAS the aforesaid Dr. Shri Kant has not seriously taken note of my earlier order and failed to resume duty in Institute of Medical Sciences, Banaras Hindu University till the date. NOW, THEREFORE, I, Y.C. Simhadri, vice Chancellor, Banaras Hindu University, after considering the entire matter in details and on merit along with the reply of the aforesaid Dr. Shri Kant, Reader, Department o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent must have planned his visit much in advance. Yet again the copies of the said Memos were sent to the Respondent's permanent address or at the address of his wife. We may, at this juncture, notice the office memo dated 7.8.2000. The Respondent appeared to have been called upon to produce certain documents, which are as follows: "1. Copies of documents in support of his having attended scientific deliberations during the period of his stay abroad. 2. The details of the institutions/country and the date of his visit to these institutions. 3. The certificate of having attended Frankfurt Retina Meeting on 12th April, 2000. 4. Certificate of having attended the Annual Congress of Royal College of Ophthalmologists at Harrogate, U.K. along with the details of his registration, remittance of registration fee etc. 5. Copies of documents in support of his working as Honorary Fellow along with the offer of the institution received from the Institution concerned and your acceptance thereto. 6. Photostat copy of his passport (all pages). 7. Any other relevant documents, if considered necessary by him, in support of the facts mentioned in his representation dated 21st July, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Vice Chancellor of the University did not refer to the provisions of the notifications issued from time to time which would clearly go to show that the University was not sure as to whether the Respondent has committed a misconduct or by leaving India without obtaining leave, he would be deemed to have abandoned his service. Although, laying down a provision providing for deemed abandonment from service may be permissible in law, it is not disputed that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of the Constitution of India. If the action taken by the authority is found to be illogical in nature and, therefore, violative of Article 14 of the Constitution, the same cannot be sustained. Statutory authority may pass an order which may otherwise be bona fide, but the same cannot be exercised in an unfair or unreasonable manner. The Respondent has shown before us that his leave had been sanctioned by the Director being the Head of the Department in terms of the leave rules. It was the Director/Head of the Department who could sanction the leave. Even the matter relating to grant of permission for his going abroad had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened here". It may be mentioned that this case arose out of a suit where a declaration was sought that the termination of the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Article 311 of the Constitution is writ large. There can, therefore be no doubt that the order under Annexure 2 is illegal, and the petitioner cannot be deemed to have ceased to be in Government employ on the basis of the said order or on the basis of Rule 76 of the Service Code." The Respondent herein had filed four writ petitions. Some interim orders were also passed in his favour. He did not get the benefit of any of the said orders. In his fourth writ petition, the Executive Council was directed to consider his case. It did not do so for more than two years. Why despite the High Court's order, the Vice Chancellor failed to place the matter before the Executive Council is not disclosed. The resolution of the Executive Council dated 8/9th January, 2003 was also not final. The same was placed before the High Court by way of a supplementary counter-affidavit only on 23.3.2003 whereas the matter was heard much prior thereto and the judgment was reserved. Judgment was delivered on 25th March, 2003 which again go to show that an attempt had been made by the University to stall the proceedings before the High Court. Before us only the University has taken a stand that even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that not only the procedure prescribed for depriving a person of his livelihood must meet the challenge of Article 14 but also the law which will liable to be decided on the anvil thereof. Here again, this Court opined that Article 14 requires that the procedure adopted must be just, fair and reasonable. It was furthermore held : "Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness." This Court opined that right to life enshrined under Article 21 would include the right to livelihood and thus before any action putting an end to the tenure of an employee is taken, fair play requires that reasonable opportunity to put f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was absenting himself from duty without authorized leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed." The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated, stating:- "Arbitrariness 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, holding : "A limited enquiry as to wh ..... 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