DR. AKSHAIBAR LAL AND OTHERS versus THE VICE-CHANCELLOR, BANARAS HINDU UNIVERSITY, AND OTHERS.

january ro,

DR. AKSHAIBAR LAL AND OTHERS v.

THE VICE-CHANCELLOR, BANARAS HINDU UNIVERSITY, AND·OTHERS. (and connected appeals)

(S. K. D.As, M. HrDAYATULLAH and J. C. SHAH, JJ.)

Ranaras University-Disciplinary action against employees-Enactment providing for special procedure-Ent~ctment. whether supersedes earlier procedure or a~reements-Banaras H1'ndu, Univer-sity Act, 1915 (r6 of I9I5). s. r8-0rdinance No. 6-Banaras Hindu University (Amendment) Act, 1958 (34 of 1958), Stalttte No. 30, as amended.

On June !4. 1958, the President of India promulgated an Ordinance to amend the Banaras Hindu University Act, rgrs. By s. 8 of the Ordinance, the Statutes of the University were amended, and in place of Statute No. 30, another st;1tute was substituted, which set up "Screening Committee" 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 continu· ance iu office woulrl 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 fit. The Ordinance was repealed by the Banaras Hindu University (Amendment) Act, rg58, which re-enacted Statute No. 30. Under the re-enacted Statute before any action could be taken by the Executive Council as referred to above, the matter had first to be referred to the Solicitor-General of the Government of India, who, if he was of the opinion that there was pri rna facie case for inquiry, shall refer the case of the person concerned to committee, known as the Reviewing Committee. On receipt of the recommendations of the Reviewing Committee, the Executive Council was to take such action thereon as it thought fit, after giving the person concerned reasonable opportunity for being heard. Apart from Statute No. 30, added by Parliament, the Executive Council could termi-nate the engagement of an employee by taking action under the terms of the agreement, where such agreement existed, or under Ordinance No. 6, framed under the Act, without assigning cause, on four months' notice or four months' salary in lieu of notice.

The cases of the appellants who held posts under the Univer~ sity were considered in accordance with the procedure laid down in Statute No. 30 by the Solicitor-General who then sent up their cases to the Reviewing Committee. The appellants appeared before the Committee and made their representations. The Com-mittee sent its findings in respect of the appellants except one to the Executive Council who then called upon four of them to show cause why their services should not be terminated, in view of the

3 S.C.R.

findings of the Committee that the continuance in office of those I96I appellants was detrimental to the interests of the University. No· ·-notices, however, were sent to appellants 2, 4, 5 and 6. Appel- Dr. Akshaibar Lal lants I, 3. 7 and 8 having filed petitions in the High Court ot v. Allahabad under Art. 226 of the Constitution of India for relief Vice-Chance_llor, against the proposed action and proceedings having been stayed, Banaras Hindu the Executive Council passed resolution, No. 8g, on May 15, University rg6o, that the consideration of their cases was postponed till after the writ petitions were disposed of by the High Court. On the same day, however, the Executive Council passed r esolutions, Nos. go, 94 to g6 and 99 to roz. terminating the services of all the appellants giving them four or six months' salary in lieu of notice. The appellants challenged the validity of the resolutions on the grounds, inter alia, (1) that the Executive Council could not take recourse to the provi.c:.ions of Ordinance No. 6 having started action under Statute No. 30, (2) that Ordinance No. 6 was subordinate to Statute No. 30 and could not p revail where Statute So. 30 applied, (3) that action against respondents I , 3, 7 and f\ \\':\s stayed by the High Court and resolution No. 89 and that any action thereafter under the agreement or Ordinance No. 6 was incompetent, and (4) that, in any case, the action of the Executive Council was mala fide and fraud upon the Univer-sity Act and Statute No. 30. The case for the University author-ities was that the Executive Council could take action under the terms oi the agreements, where such agreements existed or under Ordinance No.6 or Statute No. 30 at its option. and that where alternative remedies were provided by law,. all or any of the remedies could be invoked :

Held, that the impugned resolutions were ultra vires and should be quashed.

The power of terminating services without notice could not be invoked in the present case, where allegations of conduct detrimental io the interests of the University had already been made and scrutinised by the Solicitor-General and the Reviewing Committee and the matter was penning before the Executive Council. The powers granted by the Ordinances were expressly subject to the Statutes, and the Ordinances could not prevail over the Statutes.

State of K.crala v. C. M. Francis and Co. [ rg<Jr] 3 S.C.R. r8r, distinguished.

The words ''shall take such action thereon as it may think fit" in Statute No. 30, gave liberty of action on the recommenda-tions of the R eviewing Committee but lay duty to form an opinion. The words did not give discretion to take action outside the Statute.

The action taken by the University authorities could only be questioned if it was ultra vires and proof of alien or irrelevant motive was only an example of the ultra vires character of the action. The court was not concerned so much with the motives,

I9(H nor even wit~1 the justice of the action taken by public body, --like the University, as with its legality.

1 · 6 6 ' hort v. Poo.e orporatwn [192 J h. 6, relted on.

Dr. Akshaibar Lal S v.

CIVIL APPELLATE JURISDICTION : Civil Appeals NOS.

Viet-Chancellor,

Banaras Hindu 480 to 487 of 1960.

University

Appeals by special leave from the judgment and order dated July 15, 1960, of the Allahabad High Court in Civil lVIisc. \Vrit Nos. 1554, 1561, 1553, 1560, 1556, 1558, 1559 and 1557 of 1960.

N. 0. Chatterjet, R. K. Garg, S: 0. Agarwal, D. P. Singh, K. K. Sinha, V. A. Seyid Muhamad and M. 1\.. Ramamurthi, for the appellants (in C. As. Nos. 480 and 481 of 60).

R. K. Garg, lrf. K. Ramamurthi, S. 0. Agarwal, D. P. Singh, V, A. Seyid Muham.ad and K. K. Sinha, for the appellants (in C. As. Nos. 482 to 487 of 60).

G. N. Kunzru and J. N. Shroff, for the respondents. 1961. January 10. The Judgment of the Court was delivered by

HIDAYATULLAH, tT.-These are eight appeals against the judgment and "decree" of the High Court of Allahabad dated '-July 15, 1960, with special leave granted by this Court. By the writ petitions, which failed before the High Court, the appellants had asked that Resolutions Nos. 90, 94 to 96 a·nd 99 to 102 passed by the Executive Council of the Banaras Hindu University-on ~lay 15, 1960, terminating their services fr01n June 1, 1960, be quashed. The names of the appellants, the posts they held and the gist of the Resolutions passed against them have been set down below ;

Hidayatullah ].

Group 1 : Header in College of 1960) Agriculturt2.

1. Dr. Akshaibar Lal : (C. A. No. 480 of 1960)

(Resolution No. 100-4 n1onths' pay in lieu of

notice)

2. Dr. Gopal 'l'ripathi :

Professor of Chenli-c:al Engineering and Prjncipal, College of

(C. A. No. 482 of 1960)

Technology.

(Hesolution :'\ o. 101-4 month~ '

pay in lieu of

notice)

3. Pandit Ram Vyas Pandey : Reader and Head of

161 9v.

(C. A. No. 486 of 1960) Department of J yo- lJr. Akshaibar Lal tish-Sanskrit Maha-v. vidyala ya. Vice-ChtJncellor, (Resolution No. 99-under cis. 4 and 7 of the agree-Banaras Hindu University ment dated 1\:Iarch 26, 1931, and Or inance No. 6 of the Ordinances of the Univer~ity-6 months' pay in Hidayatullahf. lieu of notice)

4. Dr. Gauri Shankar '11iwa·ti :

Lecturer in Chemis-try-Central Hindu (;ollege (Kamachha)

(C. A. No. 487 of 1960)

(Resolution No. 102-4 months' pay in lieu of notice)

Group II

5. D-r. Ram Deo Misra:

Professor and Head of Department of Botany, College of Science.

(C. A. No. 481 of 1960)

(Resolution No. 94-under cis. 4 and 7 of the agree-

ment dated February 3, 1959, and Ordinance No. 6 of the Ordinances of the University-4 rnonths' pay in iieu of notice)

6. Mr. Ganesh Prasad Singh : Lecturer in Physical

(C. A. No. 483 of 1960) ·

Education, Teachers' Training College.

(Resolution No. 95-under cis. 4 and 7 of the agree-

ment dated January 18, 1946, and Ordinance No.6 of the Ordinances of the University-6 months, pay in li~u of notice)

7. Mr. Radhe-y Shyam Shat·1na: Lecturer, College of

(C. A. No. 484 of 1960) Technology.

(Resolution No. 90-under cis. 4 and 9 of the agree-ment dated J anua.ry 21, 1957, and Ordinance No. 6 of the Ordinances of the University-4 months' pa.y in lieu of notice)

Dr. Ram Yash Roy: Lecturer in Botany, (C. A. No. 485 of 1960) College of Science.

8. Dr. Ram Yash Roy:

(Resolution No. 96-under cls. 4 and 7 of the agree-ment dated August 12, 1932, and Ordinance No.6 of the Ordinances of the University-6 months' pay in lieu of notice).

:r[[96]]I The cases of the appellants are very sin1ilar; but Dr. Akshaibar Lal fall into two groups as indicated above. The v. differences are not many, and some of them are indi-Vice-Chancellor, cated in the gist of the resolu t.ions not Pel against their Banaras Hindu Hindu names. Other differences will appear from the facts, University which are given below.

v. Vice-Chancellor, Banaras Hindu Hindu University Hidayatullalt 1.

The affairs of the Banaras Hindu l)niversity, for reasons with which we are not concerned, had been deteriorating, and situation had arisen which required intervention imnlCdia.tely. The President uf India, in his capacity as Visitor and in exercise of the powers conferred by s. 5(2) of the Banaras Hindu University Aet, 1915, appointed Committee of Enquiry (known as the ~ludaliar Committee) consist-ing of:

I. Dr. A. L. Mudaliar (President)

2. Mr. !1. C. ~iahajan

3. Dt·. P. ~ubbarayan

4. Smt. Sucheta Kripalani

5. 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 s01ne of the Inst.itutions of the Universityt and to suggest remedies and measures of reforn1 for the bettenncut of academic life and efficient functioning of the University. The Comtnittee made report suggesting that •' Screening Committee '' should be appointed to review the appointments made to the teaching staff a.nd the work of the teaching staff, and that action should be taken in the light of t he findings of the Screening Committee.

On June 14, 1958, the President of India promulgat. ed an Ordinance (IV of 1958) to amend the Banaras Hindu University Act, HH5. By s. 8 of the Ordinance, the Statutes of the University were amended, and in place of Statute No. 30, another Statute was substi-tuted, which set up "Screening Committee '\ consist-ing of (a) person who is or has been Judge of a. High Court (Chairman), (b) the Vice-Chanceilor (Ex officio) and (c) person having administrative or other experience in educational matters, to examine the cases of all persons holding teaching, administrative or other

3 S.C.R.

posts in the Universit.y at the commencement of the 1 961 Ordinance, in respect of whom there was reason t_o Dr. Akshaibar Lal believe that their continuance in office would be detrt· v. mental to the interests of the University, and to Vice-Chancellor, forward its recommendations to the Executive Council Bana1as Hindu to take such action as it may deem fit. University

The Ordinance of the President was repealed by the Hidayatullah .J. Banaras Hin:1u University (Amendn1ent) Act~ 1958 (XXXIV of 1958), which re-enacted Statute No. 30 as follows:

u 30. (1) If· the Executive Council has reason to believe that the continuance in office of any person who on the 14th day of J unP-, 1958, was holding any teaching, administrative or otlwr· post in t.he Univer-sity would be detrimental to the intt:rest.s of the University, it may, aftrr recording briefly the grounds for sueh be1ief, refer the case of any such person, together with t.he connected papers, if atJy, in its possession, to the Solicitor-General to the Government of India :

Povided that, where an allegation of the n-ature referred to in this sub-section reJateH to member of the Executive Council who 'vas holding any teach-ing, admiuistrat.ive or othP-r post in the University on the said date, the Executi \·e Council shall, without considering the allegation, refer the case of such perso~1, together with 'copy of the allegation, t.o the Solicitor-General t.o the Governrnen~ of India ..

(2) If on any such reference the Solicitor-General to the Government of I11dia is of opinion that there is prima facie case for inquiry, he shall refel' the case of the person concerned to Committee to be constituted for the purpose by t he Central Govern-ment and known as the Reviewing Committee, which shall consist of the follo,ving persons, namely :-

(a) person who is or has been Judge of High Court nominated by the Central Government who shall be the Chairman of the Committee; and

(b) two persons nominated by the Central Govern-

ment from- among persons who have had adminis-tr~tin~ or other experience in educational matters,

(3) It shall be the duty of the Reviewing Commit.

tee to examine the case of every person referred to it by the Solicitor-General; and the Reviewing Com~ mittee shall, after holding such inquiry into the case as it n1ay think fit, and after giving to the person concerned an opportunity of being heart!, if he so desires, forward its recommendations to the Execu-iive Council.

Dr. kshaibar Lal v. V ice-Chwnce llor, Banaras Hindu University Hidayatullah J.

(4) The meetings of the Reviewing Committee

shall be convened b.Y such person as may be appoint~ ed for this purpose by the Chairman.

(5) On receipt of the recommendations of the Reviewing Committee, the Executive Council shall take such action thereon as it n1ay think fit :

Provided that when the recommendations relate to any such person as is referred to in the proviso to sub-section (1), such person shall not take part in any meeting of the Executive Council in which the recommendations are considered.

(6) Before taking any action against any person

on the recommendations of the Reviewing Commit-tee, the Executive Council shall give him reason-able opportunity of being heard."

Under the powers granted by this Statute and after sundry procedure, the Solicitor-Geners.tl sent up the cases of the appellants (and some others, who are not before us) to -the Reviewing Committee. The appel-lants appeared before the Hev.iewing Committee and their cases. in the case of represented Except 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 termi· nated, in view of the findings of the Reviewing Com-mittee that the continuance in office of those appellants was detrimental to the interests of the University, which the Executive Council had accepted. These four appellants showed cause on }I arch 5, 1960. No notices

3 S.C.R.

were, however, sent to the four appellants in Group II

above, and this is one distinguishing feature in the Dr. Ak-;;:bar Lal cases. v.

v. Ut~iversity

The four appellants (Group I) filed. petitions under Vice-Chancellor. Art. 226 of the Constitution (W. Ps. Nos. 712 to 715 of Banaras Hindu 1960) on March 9, 1960, in the High Court of Allahabad Ut~iversity

for relief against the proposed action. On the same day Hidayatullah J. D. S. Mathur, J. passed an ad interim order as follows:

"The respondents Nos. 1 to 3 are directed until further orders, not to t_ake 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 order: . following

''In supersession of the interim order dated 9-3-1960, I order that the proceedings before res-pondent No. 2, Executive Council ofBanaras Hindu University, arising out of the recommendations of the Reviewing Cornmittee shall remain stayed.H

On May 15, 1960, the Executive Council of the University passed number of Resolutions. Resolution N Q. 89 took into consideration the explanations sent by the four appellants (Group I) 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 petitions above-mentioned are disposed of by the High Court." 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 mention that the action was taken under cis. 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 power the action was taken. Even earlier than the notice to show cause issued on ],ebruary 13, 1960, explanations were called from Pandit Ram Vyas Pandey and Dr. Gopal Tripathi by Resolutions Nos. 278 and 281 dated September 9, 1959, and these expla-nations were ordered to be filed by Resolution No. 103passed on the same day. on the same day. the same day. same day. day. Four Resolutions were Resolutions were were also . passed terminating the services of the other appellants terminating the services of the other appellants the services of the other appellants services of the other appellants of the other appellants the other appellants other appellants appellants belonging to to Group II. II.

1961 Four Resolutions were Resolutions were were also passed on the same day. on the same day. the same day. same day. day. Dr. Akshaibar L(l! passed terminating the services of the other appellants terminating the services of the other appellants the services of the other appellants services of the other appellants of the other appellants the other appellants other appellants appellants v. belonging to to Group II. II.

Vice-Chancellor, It was after theRe Resolutions we-re communicated Banaras Hindu that the eight petitions were filed by the appellants in University the High Court of Allahabad. The High Court by Hidayatullah J. common judgment., which is under appeal, dismissed all the petitions with costs.

The case of the appellants, broadly stated, is that the Executive Council could not take recourse to the provisions of Ordinance No. 6 of the Ordinance~ of the University, having started action under Statute No. 30, that Ordinance No. 6 was subordinate to Statute No. 30 and could not prevail where Statute No. 30 applied, that action against the four appellants in Group I was stayed by the High Court and Resolu-tion No. 89, and that any action thereafter under the agreetnent or·Ordinance No. 6 was incompetent. The action ofthe Executive Cpuncil was characterised as malafide and fraud upon the University Act and Statute No. 30. The High Court did not accept any of these contentions. Before us, the same points have , been urged again, and in reply, the University con-. tends that the Executive Council could take action under the terms of the agreements, where such agree-ments existed; or under Ordinance No. 6 or Statute No. -30 at ·its option, and that where alternative reinedies were provided by Ia w, all or any of the remedies could be invoked.

Before we deal with these arguments, it is necessary to examine closely the powers of the Executive Council of the University, as they can be gathered from the Banaras Hinrlu University Act, the Statutes and Ordin· ancrs framed under it. The Act wets passed in 1915 (XVI of 1915), but it was amended in 1930, 1951 and 1958. Origina1ly, the Act provided for the framing of St atntrs and H.egula tions by the University ; but in 1951, the existing H,pgnlations were deemed to be the firsL Urdinances under s. 18(2) of the mnenrled Act. further power to make Regulations was conferred by s. 19. Thereafter, there were Regulations in addition to the ·univ,ersity Act, Statutes and Ordinances. vVe

are not concerned with the Regulations, and no refer-ence need be made to them except to say that they . D1 ranked below the Ordinances and had to be consistent with the Act, the Statutes and the Ordinances.

. Aksh<lil>ar Lal v. Vice-Chancellor. BaMras Hindu Hindu University

In the Act, th£3 word "Statute , was defined to BaMras Hindu Hindu

mean " the Statutes for the time being in force", and there was an analogous definition of the word "Ordin-ances,,. Section 17(~) of the Act enacted that ~'the first 17(~) of the Act enacted that ~'the first of the Act enacted that ~'the first the Act enacted that ~'the first Act enacted that ~'the first enacted that ~'the first that ~'the first ~'the first first 1Statutes shall be those set out in Schedule I '• The power to frame Statutes wa.s conferred on the Execu-tive Council by s. 17(3), but was subject to the previous approval of the Visitor. This sub-section, as it was amended by s. 4 of the Banaras Hindu University (Amendment) Act, 1958, read as follows:ances,,. Section 17(~) of the Act enacted that ~'the first 17(~) of the Act enacted that ~'the first of the Act enacted that ~'the first the Act enacted that ~'the first Act enacted that ~'the first enacted that ~'the first that ~'the first ~'the first first id-ryatullah J.

''The Executive Council may, fron1 time to time, make new or additional Statutes or may amend or repeal the Statutes; but every new Statute or addi. tion to the Statutes or any amendment OL' repeal of :t Statute shall require the previous approval of the Visitor who may sanction, disallow or remit it for further consideration."

Section 4A of the Act invested the University with powers, and sub-ss. (7) and (13) n1ay be quoted here:

"(7) to institute professorships, readerships, lec-tureships and other teaching posts required by the university and to appoint persons to such prufessor-ships, readerships, lectureships and other posts; (13) to create administrative, ministerial and other necessary posts and to make appointments thereto." Section 7 of the Act named the officers and autho-rities of the University, but power was reserved to the University to declare, by statutes, other officers and authorities of the University.

In addition to being an authority of the University, the Executive Council was appointed the executive body of the University. Sub-section (2) of s. 10 of the Act laid down :

"The Executive Council shall exercise such powers and perform such duties as may be vested in it by . the Statutes.,,

Section 17· of the Act provided how the statutes were to he fnuned aud what they weJ'e to contain. \\'

I9[61 ]ha.ve already referred to the first Statutes of the Uni· Dr. Akshibar Lal varsity which were placed in Schedule I of the Act v. and the power of the Executive Council to make new Vice-Chancellor, or additional Statutes or to amend or repeal existing Banaras Hindu Statutes subject to the prior approval of the Visitor. University Section 17 provided : Hidayatullah f. "17(1). Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely:-

matters, namely:-....................................................................... (c) the appointment, powers and duties of the officers of the . University." 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 power and duties in respect of the Execu-tive. Council was thus the Statutes under the autho-rity of the Act.

Section 18 of the Act (as amended in 1951) provided: "18(1). Subject to the provisions of this Act and the Statutes, the Ordinances may provide for all or any of the following matters, namely :-Ordinances : ··•••·•·•··••••••••··•··••·••·•········•••••·············••••·•···•·· (k) the emoluments and terms and conditions of service of teachers of the University." The Ordinances were thus made subordinate to the Act and the Statutes, and could not go beyond them or them.. . derogate from One more provision of the Act as amended in 1951 may be read here. It is s. I9A, which provided : " 19A. (1) Every salaried officer and teacher of the University shall be appointed under written con~ tract, which shall be lodged with the University and copy of which shall be furnished to the officer or teacher concerned. · (2) Any dispute arising out of contract between the University and any of its officers or teachers shall, attherequestofthe officer or teacher concerned or at the instance of the to Tribu~ University, be referred nalof Arbitration consisting of cne member appointed

' ' ! ' \

by the Executive Council, one member nominated r96r the officer or teacher concerned and an Ak-h--:-b by umpire L 1 pp01nte . y th v· lSI 't or, an th eciSIOn . . o th Dr, s v. ar a,. Tribunal shall be final.,, Vict:·Chancellor, The to the Executive Council the Banaras Hindu powers granted by 1nay now be seen. Statute No. 18 was University

Statutes 1nay now be seen. Statute No. 18 was University amended in 1958, and is referred to as amended. It Hidayatullah 1. laid down:

" 18(1). The Executive Council shall, subject to

the control of the Visitor, have the management and administration of the whole revenue and property of the University and the conduct of all adminis-trative affairs of the University.

(2) Subject to the provisions of the Act. the Statutes

and the Ordinances, the Executive Council shall, in addition to all other powers vested in. it, have the following powers, namely :

(i) To appoint~ from time to time, ... Principals of

Colleges and institutions established by the Univer-sity, and such Professors, Readers, Lecturers and other members of the as be neces-teaching staff, may on the recommendation of Selection Committees sary, constituted for the purpose:

(Proviso omitted)

(ii) to appoint members of the the administrative staff or to the of to such delegate power appointment authority or authorities, or officers as the Executive Council may, from time to time, by resolution, either gener~lly ... " . or specially direct;

The power of appointment was thus conferred by the Statutes on the Executive Council.

We now turn to the Ordinances, where the discipli·

nary rules are to be found. On October 13, 1958, the Executive Council by Resolution No. 181 reconstituted the material Ordinance. Chapter III in part I of the Banaras ,Hindu lTniversity Calendar (1958) contains the terms of and condi .. appointment, grades, salary tions of service of teachers, officers a.nd other employees · of the University. That Chapter is divided into many -#)actions and sub~sections. Section 5 deals with teaching and administrative posts, and s. 6, with the condition~

1 961 of service and terms of appointment. Ordinance No. 2 r. ['Ah_l_b ],sLat <lr 1 .a 1[in ][this ][section ][lays ]~. [down ][: ]• ff 1 11 v. "The conditwns of serviCe o t sta s 1a Vicc-Ch!Mce.'lor, embodied in the Agreement Form of service. Every Banara> l!i11du employee shall on confirmation sign the agreement llntl'elsll)' orm. "

Hidayatuilali .f. Ordinance No. 6, before its amendment, read: "The Executive Council shall be entitled to ter-lllinate the engagement of an employee (i) on grounds of misconduct and {ii) physical unfitness for good cause and after calling for and consideriQg his explanation and after giving four months' notice in writing or payment of four months' salary in lieu of notice."

The Ordinance was unhappily worded. The expres-sion "physical unfitness for good cause" hardly mal\es sense. l\fore difficulty arises Ly the use of the con-junction "andH. That wortl used for the first tiine in the Ordinance iH obviously used disjunctively; but on tho ~econcl and third time it is used conjunctively, introducing ·two conditions precedent. So far, there is no dispute, though much h!ld drafting. Dispute arises oYer the last use of the conjuncti:Jn "and" in the Ordinance. The appellants contend that it must be reacl conjunctively as introducing third condition precedent, while the University urges that it is sepa-rate power of termination unconnected with the others. The High Court was persuaded to read the clause as interpreted by the University and; in our opinion, rightly.

In 1958, the Executive Council re-framed this Ordin-ance but surprisingly enough, without any better success. The re-enacted Ordinance, as printed in the amendment slip, read:

" 6. The Executive Council shall be entitled to terminate the engagement of an employee for

(i) misconduct, or

(ii) physical unfitness, or

{iii) inefficiency, or

(iv) breach on his part of one or more of the

tertns of his agreement with tho University, after

i r ' '

calling for and considering his explanation in each rg[6]r of the ca!3es mentioned above; or Dr. Akshaibar (v) after giving four months' notice or payment v. of four months' salary in lieu thereof." Vice·Chancellor, The dispute this time arises from the careless use of Banaras Hindu the word Hor". The Ordinance mentions four reasons University for termination of services, which are numbered (i) Hidayattdlah f. to (iv). In each of t~ose 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 comtnendable. Then follow semi-colon and "or" and number (v). The word "or" does not seek to create an option between calling for and considering an explanation and four months' notice, etc. The number ( v) and the semi-colon be-tween "mentioned above ,, and "or" do not permit this reading. Tl!.e difficulty, however, does not end there. If we read the fifth clause as connected in-dependently with the opening words, we get this:

Dr. Akshaibar Lal v. Vice·Chancellor, Banaras Hindu University

"The Executive Council shall be entitled to tern1inate the engagement of an employee for .........................................................................

(v) after giving four months' notice4 .............. ";

which makes the word "for" superfluous in the sentence.

In our opinion, the sense of the Ordinance can be obtained by rearranging the matter thus:

"6. The Executive Council shall be entitled to

terminate the engagement of an employee-

for (i) misconduct, or

(ii) physwal unfitness, or

(iii) inefficiency, or

(iv) breach on his part of one or more of the terms of his agreement with the University,

after calling for and considering his explanation in each of the cases mentioned above;

or (v) after giving four months' notice or payment of four months' salary in lieu thereof. "

This means that., if action is taken under cis. (i) to (iv), an opportunity of showing cause against the termina-tion of the service must be given; hut. action can also be taken to t~rminate the service, without .a.$signing

I9[6]I cause, on four months' notice or four months' salary r. Arrs :r.. at ar .b L 1 in lieu of notice. The case . of the University is that v. all these orders of termination of service were passed Vice-Chancellor. under the power granted by cl. (v) of this Ordinance, Banaras Hindu modified by the terms of the agreements as they existed. University The result of this analysis shows that the power of Hidayatullah .f. the University to terminate the services of the incum .. bents was derived from (a) agreements, (b) Ordinances, and (c) Statute No. 30. The agreements merely repre-sented the general right of master to terminate the services of incuJnbents, 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 service which was protected against arbitrary action, being perma-nent, could only be invoked in an appropriate instance. In those cases which would fall within the categories of proved rnisconduct, inefficiency and physical unfit-ness, the University was required to take action in accordance with the Ordinance and the Rules.This was the position before the new Statute No. 30 was added by Parliament. This legislative measure was undertaken as the result of the sorry state of affairs of the University, and special ground was required to be proved. It was that the continuance of an incumbent was detrimental to the interests of the University. The power to terminate the services of an incumbent on this ground was hedged in with appropriate safeguards, due to the struggle for power which it is saidt had arisen in the University in the past; and though . the Mudaliar Committee had suggested Screening Committee to go into the cases of all teachers, Parliament thought it necessary that before any case reached the Screening Committee {re-named the Reviewing Committee) it should be scruti~ nised by the Solicitor-General. The procedure which the new Statute enacted, ensured fairplay and proper scrutiny. First, the Executive Council had to resolve that the continuance in office of any particular person

3 S.C.R.

196was detrimental to the interests of the University. r The reasons for such belief had to be recorded briefly Akshaibar and the Resolution together with the connected papers '· v. had to be sent to the Solicitor-General. In the case of Vice-Chancellor, teacher who was men1ber of the Executive Council, Banaras Hindu Hindu the Executive Council was not to consider the allega~ University tions but to send the papers to the Solicitor-General. Hidayatullah J. The Solicitor-General had to decide if there was prima facie case for enquiry, and then he was to refer suitable cases to the Reviewing Committee. The Reviewing Committee was then to enquire into the matter, and forward· its recommendations to the Executive Council. The Executive Council was there-after required to proceed under cl. (6), which was as follows:

Akshaibar Lal v. Vice-Chancellor, Banaras Hindu Hindu University

"Before taking any action against any person on

the recommendations of the Reviewing Corn mit tee, the Executive Council 8hall give him reasonable opportunity of being heard. "

The power of the Executive Council was conferred by cl. 5, which provided : ·

"On receipt of the recommendations of the Reviewing Committee, the Executive Council shall take such action thereon as it may think fit.,

The procedure laid down in Statute No. 30 was followed by the University. The cases- of the appel-lants went before the Solicitor-General and then before the Reviewing Committee. In seven ca,ses out, of eight, the Reviewing Committee gave its opinion. In four out of seven cases, show-cause notice was issued under cl. 6 but not in others; and the four appellants (Group I) al~o showed cause. They also obtained stay from the High Court of Allahabad against action under Statute No. 30, and the Executive Council decided to postpone consideration of their cases. But the Executive Council abandoned action under Statute No. 30, and proceeded to act under pbwers which, it thought, flowed from the agreements and the Ordin-ances, and terminated the services of the eight appellants, giving four or si~ months' salary in lieu of notice. ·

SUPREl\tlE COURT REPORTS

In so far as the power of terminating services with ..

Dr Ak .b L 1 out notice was concerned, the general power could not • s v:' ar be invoked, when allegations of conduct detrimental Vice..Chancellor, to the interests of the University had already been Banaras Hindu made and scrutinised by the Solicitor~General and the Univet-sity Reviewing Committee and the matter was pending before the Executive Council. The powers granted by Hidaya#ullah ]. O S t r inances are expressly su ject to t tatutes, and the Ordinances cannot prevail over the Statutes.Statute No. 30 provided for special action in special circumstances. The existence of t.he special circum-stances is expressly admitted, inasmuch as the cases were referred to the Reviewing Committee. The exist-ence of the special circumRtances and the special remedy excluded the right of the University to invoke its general powers, not to start with, but after the special procedure had been deliberatP]y adopted and had commenced. If the cases of these appellants had not been sent to the Solicitor-General and the Reviewe ing Committee at all, other considerations might have arisen. The question is whether after the special procedure was once invoked, it could be dropped in the middle and other powers exercised.

The University relies on three arguments in this connection. It is first contended that the powers of the University were cumulative, and that the Univer-sity could resort to any of the remedies op,en to it. Reliance is placed in support of this argument on Shankar Sakai v. Din Dial (I) (observations of 1\lahe mood, J., at p. 418), Om Prakash Gupta v. State of U. P. ([9]), The State of Madhya Pradesh v. Veereshwar Rao Agnihotry ([3]), Brockwell v. Bullock('), _ Seward v. " Vera Cruz'' ([5]) and Barker v. Edger ([6]). It 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 ca.n be invoked unless one remedy is expressly or by necessary implication excluded by the other (See State

(I) (z88g) I.L.R. 12 All. 409.

(4) (1889) 22 Q.B.D. 567. (.5} (1884) IO A.C. 59· (6) (18g8] A.C. 748 (P.C.).

(:a) [r957] S.C.R. of-23·

(5) [1957] S.C.R. 868,

of Kerala'v. G. M. Francis and Go. (1) ). The question 1961 thus is whether there is anything expressly stated by .b I aw or I ear I y 1mp . 1te [. ]w tc wou h" ld exc u powers l D,-. Akslun ar .b under the agre_ements and the Ordinances, when a.ction vice-cZ~ncellor, has been taken under the Statutes. The University Banaras Hindu Hindu Act expressly makes the Ordinances subject to the University Statutes, and in case of any clash Let ween them, the Ordinancet> rnust be made to stand down. Further, Hidayatullah J. Statute No. 30 was enacted by Parliament to meet special situation, and contained 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 mid-course and on to This is illus-pass something else. trated 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 teto ask what action was con-mpted possjble further templated when their services were terminated the same day. It Inay 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 Committee.

1961 D,-. Akslun ar .b L 1 vice-cZ~ncellor, Banaras Hindu Hindu University

The appellants characterised the whole action as lacking in bona fides. The action can only be questioned if it is ultra vires, and proof of alien or irrelevant motive is only an exam pie of the ultra ·viTes character of the ~ction, as observed by Warrington, L.J., in the follow-Ing passage :

"My view then is that only case in which the Court can interfere with an act of public body which is, on the face of it, regular and within its powers, is when it is proved to be in fact ultra vires, and that the references in the judgments in the several cases cited in argument to bad faith, corrup-tion, alien and irrelevant motives, collateral and indirect objects, and so forth, are merely intended when properly understood as examples of matters

(I) [Ig6I] 3 S.C.R. I8I.

which if proved to exist might establish the ultra.

vires character of the action in question " (Short v. Dr. Akshaibar Lal v. Poole Corporation (1) ).

We are not concerned so much with the motives, nor

Vice-Chan eel/or. Banaras Hindu University Hidayatullah j.

even with the justice of the action as with its legality, and, in our opinion, hav~ng 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 ava··lable in those special circumstances which led to action under Statute No. 30.

The next argument is that Statute No. 30 itself left liberty of action, inasmuch as cl. 5 gave power to the Executive Council to act as it thought fit. To 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 recmnmendations of the Heviewing Committee, but Jay duty to form an opinion. The words do not give discretion to take action outside the Statute."

Lastly, it is argued that the Executive Council as

the appointing authority had the power also to dismiss, and reference is made to ss. 4(7) and 4(13) of the Act and s. 16 of the General Clauses Act. None can deny that the did such The University possess power. question is whether it exercised it correctly under the Statutes and .Ordinances. We are quite clear that the Executive Council did not.. We n1ay say here tha~ we have not accepted the contention that the action of the Executive Council was based upon malice or any indirect or oblique motive. The 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

ll) [1926) Cb. 66, 91.

r9[[6]]r

the impugned Resolutions were ultra vires and should r9[[6]]r be . Dr. Akshaibar quashed. In the result, the appeals are allowed. Resolut1ons v. Nos. 90, 94 to 96 and 99 to 102 dated May 15, 1960, of Vice-Chancellor, the Executive Council of the Banaras Hindu Univer-Banaras Hindu Hindu sity are quashed, and an appropriate writ or writs University shall issue to the respondents to that effect. The Hidayatullah f. respondents shall pay the costs of these appeals, as also of the High Court. Only one set of hearing fee here and in the High Court shall be allowed.

Dr. Akshaibar l~al v. Vice-Chancellor, Banaras Hindu Hindu University

Appeals allowed.

MAHANTH RAMSW AROOP DAS

January II.

THE STATE OF BIHAR.

(J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.)

Agricultural Income~tax-Estate in management of Court Receiver-Owner if liable to be assessed to tax for such period--Bihar Agricultural Income-tax Act, XXXII of I948, ss. 2, cl. (m), 3 and IJ.

The appellant was the Mahant of the Asthal Estate in Bihar which was in the management of Receiver appointed by the Civil Court in suit relating to the estate. On appeal the question that arose for decision in this Court was whether the appellant-Mahant was liable to be assessed under the Bihar Agricultural Income-tax Act, 1948, to pay agricultural income-tax for the year in which the estate was in the management of the Court Receiver.

Held, that the income though collected by the Receiver was the income of the appellant. By virtue of the provisions of ss. 2, cl. (m) and 13 of the Bihar Agricultural Income-tax Act it was open to the taxing authorities to treat the Receiver as the assessee because he held the property from ·-~ich income was derived, but on that account the income in tfie.'nand of the owner was not exempt from liability to assessment of tax. Section 3 of the Act provides for charging agricultural income of every "person " as defined in s. 2, cl. (m) which includes receiver and s. 13 merely provides machinery for recovery of tax from "persons" including receivers and is not by itself charging section.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 449 of 1958.

Appeal by special leave from the judgment and decree dated August 7, 1956, of the Patna High Court ·in Misc. Judicial Case No. 604 of 1953.