RAMESH MALVIYA Vs. VICE-CHANCELLOR LUCKNOW UNIVERSITY LUCKNOW

JUDGEMENT

(1.) Heard learned Counsel for the petitioner and learned Counsel for the Lucknow University and perused the record. The petitioner has challenged his Termination Order dated 4th August, 1982 published in daily newspaper 'amrit Prabhat' whereby his services were terminated with effect from April 13, 1980. He has prayed for a writ in the nature of certiorari quashing the said impugned Termination Order and further he has sought for a Writ of Mandamus commanding the opposite- parties to treat the petitioner as working on the post of Cashier with all privileges, emoluments, seniority and increments, etc. 2. A brief analytical resume of the petitioner's case is that he joined as a Clerk in the year 1964 in the College of Arts and Crafts, Tagore Marg, Lucknow, a constituent College of the Lucknow University. In due course, he was appointed as Cashier and confirmed on the said post in December, 1974. It is alleged further that the opposite party No. 3, Sri R. S. Bisht, Principal, College of Arts and Crafts, Lucknow who was earlier an Assistant Professor in the College, had a serious prejudice against him. He was placed under suspension on a wrong charge regarding construction of a temple at Suraj Kund, Lucknow. However, he was subsequently exonerated of the said charge and reinstated in service. The opposite party No. 3 ignored the petitioner's seniority and with a view to harass him, declared two officials who in fact were junior to him as his senior. In the year 1977, the College of Arts and Crafts merged with the Lucknow University and consequently it became a faculty of Fine Arts as a constituent college and the conditions of employees including the petitioner remained as before. With a view to harass the petitioner, the opposite party No. 3 had instigated some students of the College, who threatened him with dare consequences. The petitioner lodged a complaint but to no avail. In an incident of assault, the petitioner's brother and his friend were mercilessly beaten on 18th December, 1979 as a result of which they had to be carried to K. G. M. C. as it was then, on Ambulance and the petitioner was also threatened to suffer the same consequences. In this background of hostility, to the utter surprise of the petitioner, one Shri P. N. Yadav started working as Cashier without the charge of the said post being handed over to him. The petitioner was not allowed to sign the attendance register and he was marked absent from duty. The petitioner sent several letters to the Principal and expressed his anxious desire to continue on the said post but the opposite party No. 3 did not permit him either to sign the attendance register or discharge his duty. His salary was also withheld and eventually his services were terminated with effect from 13th April, 1980. As the petitioner was not afforded an opportunity of hearing nor any enquiry was conducted according to the statute, the Termination Order/notice was illegal, unreasonable and violative of the principles of natural justice. 3. In his counter-affidavit, Shri S. K. Pandey, the Administrative Officer, College of Arts and Crafts, Tagore Marg, Lucknow conceded in para 3 that the petitioner was appointed as a Clerk in the year 1964 and with effect from 11th May, 1972 he was appointed as Cashier and after satisfactory service, he was confirmed on the said post with effect from 1st December, 1974. However, since he was indulging in practices subversive of law and order he was placed under suspension in the year 1970. He was also instrumental in getting a temple illegally constructed. It was, however, different that subsequently he was reinstated in service, as the allegations in an enquiry were found not specific. As the petitioner was of quarrelsome nature and usually picked up quarrel with the students, the Proctor had issued him a warning and asked him to mend his ways. When he did not improve his conduct, Shri P. N. Yadav was asked to discharge the duty of a Cashier. An order to this effect was issued as it was considered to be essential in order to prevent the chaotic conditions prevailing in the college campus. The petitioner thereafter did not report for duty and was continuously absent for a considerable period. Notices were sent to him to resume his duty but he deliberately disobeyed, as a consequence, his services were terminated with the publication of a notice in 'amrit Prabhat' on 4th August, 1982 wherein the date of termination was specifically mentioned to be as 13th April, 1982. 4. It is significant to note that the petitioner' services had been terminated without any disciplinary enquiry. This fact is not disputed; rather, it was conceded to by Mr. S. K. Pandey, the Administrative Officer that since the petitioner was absent for quite some time and did not respond to the notices sent to him, the impugned notice was published and his services were terminated. 5. Learned Counsel for the petitioner has, with reference to the Lucknow University Statutes, contended that the services of a confirmed employee could not have been terminated unless an enquiry was conducted and the petitioner was given an adequate opportunity of hearing. A specific reference has been made to para 2. 06 which authorizes the Registrar to exercise his disciplinary control over all the employees of the University. Since the College of Arts and Crafts was a constituent of the University, the Registrar was competent authority to have ordered for an enquiry against the petitioner. Sub-para (2) of para 2. 06 provides for dismissal, removal, reduction in rank, reversion, termination or compulsory retirement of an employee. Sub-para (3) of the aforesaid para is very candid in its terms and since it is very relevant from the present point of view, it may be quoted as below: "no order shall be made under clause (2) except after an inquiry in which the employee has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity, of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry. " 6. The statute thus is absolutely clear and as is postulated the services of a confirmed employee cannot be terminated unless charge against him is framed, served upon him and a reasonable opportunity of hearing being afforded to him. Admittedly, no disciplinary enquiry was directed to be conducted against the petitioner. Question of framing any charge did not arise at all and no opportunity of explaining charge regarding his continuous absence had been extended to him. 7. Learned Counsel appearing on behalf of the University referred to two letters of January 10, 1980 (Annexure No. CA-7) and another letter which is undated, a copy whereof is Annexure No. CA-8 on record. By virtue of these two letters, the petitioner was asked to be present before the Principal and handover the charge of his post. There was a default clause also by virtue of which it was conveyed to the petitioner that in case of default an adverse action would be taken and his services might be terminated. As a matter of fact, the warning was never converted into a disciplinary enquiry. It merely remained confined to the pressure having been exerted upon him to handover the charge of his post. 8. Mr. Krishna Chandra, learned Counsel for the University has referred to a decision of the Apex Court in Abdul Kalam Sheikh v. Registrar, M. L. S. University and Anr. , 2001 (9) FLR 1242 and contended with reference to it that in a case of prolonged absence from duty where there is no material to justify such a long absence, any enquiry would have been meaningless and therefore, such a continuous absence for a very long time would give raise to the presumption of abandonment of services. 9. If we compare the facts of that case with those pleaded in the present petition, it would emerge out that the petitioner of this case has throughout been pleading with the authorities that he was not being allowed to sign the attendance register. Although he came daily to the office, yet the opposite party No. 3 who had serious prejudice against him forced him to retreat and was also threatened with dire consequences in case he made an endeavour to sign the attendance register. His contention finds support from the letter Annexure-5 on record, which was addressed by him to the Vice-Chancellor of the Lucknow University A perusal of the letter would indicate that the petitioner apprehended a physical harm to him at the hands of the Principal and some of his associates. Not only that he asked for the security but he also made it clear that he was always ready to discharge the duty as assigned to him as Cashier and also it was specifically recited that he was not being permitted to join his duty, rather forced to handover the charge of his post. On April 14, 1980 also the petitioner addressed a letter (Annexure-4) to the Vice-Chancellor. In this context, it is thus important to observe that since the petitioner had always and continuously kept on disputing the principal's stand of his being absent from duty, an enquiry was necessary to be held so as to arrive at a decision in the midst of claims and counterclaims. As was the case in the citation referred to above, the petitioner of the present case did not abandon his claim to hold the post of Cashier and since he periodically kept on informing not only the Principal but also the Vice-Chancellor of the University, no presumption can be made that he had abandoned his services. Obviously thus, the citation is of no help and furthermore, the Industrial Act is not applicable to the case in hand. 10. The Hon'ble Supreme Court in L. Robert D'souza v. The Executive Engineer, Southern Railway and Anr. , AIR 1982 SC 854, ruled that absence without leave constitutes misconduct and it is not open to the employer to terminate service without notice and inquiry or at any rate without complying the principle of natural justice. It was further ruled by the Hon'ble Apex Court that the mode, manner and methodology of terminating service of a temporary railway servant and admittedly the procedure prescribed therein having not been carried out, the termination is void and invalid. In view of this principle laid down by the Hon'ble Supreme Court, the Termination Order of the Petitioner would certainly have to be termed to be void and illegal. 11. Having regard to the discussions made above, I am of the decisive opinion that the impugned Termination Order (Annexure-9) is null and void, as it was issued without a statutory enquiry and without an opportunity of hearing being afforded to the petitioner. Indeed, such a Termination Order is arbitrary and unreasonable as it violates the principles of natural justice. Palpably, it was violative of Article 14 of the Constitution of India. 12. In the result, the petition deserves to be allowed. Accordingly, the impugned order (Annexure-9) is hereby quashed. A Writ of Certiorari is issued to this effect. The opposite-parties are commanded to reinstate the petitioner symbolically with effect from the date the impugned notice was published in Amrit Prabhat, i. e. 13th April, 1980. Since he has in the meantime superannuated on 30-9-2001, he would be entitled to draw his back wages. 13. On the quantum of back wages, learned Counsel for the University argued that in view of the decisions of the Supreme Court in Hissar Central Co-operative Bank Ltd. v. Kali Ram, 2005 (104) FLR 108 and Union of India and Ors. v. Ram Chandra and Anr. , (2005) 9 SCC 365, full back wages should not be sanctioned to the petitioner. In the former citation, the Hon'ble Supreme Court had observed that while considering the question of back wages, regard must be had to the nature of the charge, the extent of his involvement and the conduct of the employee vis-a-vis loss to the employer. All these relevant factors have to be considered while granting the back wages. On an overall view, twenty five percent back wages were awarded in the said case. In the latter of the two citations referred to above, fifty percent back wages were awarded, keeping in view that the respondent must have been engaged in employment elsewhere. 14. However, on the other hand, learned Counsel for the petitioner contended that since the services of the petitioner were terminated without following the statutory rule and the Termination Order was null and void, he would be entitled to full back wages. In support of his contention, learned Counsel cited three decisions, which may be quoted as below: (1) Abhinash Chandra Gautam v. Union Territory of Tripura and Anr. , 1984 (Supp) SCC 551. (2) Maharaja Sayajirao University of Baroda and Ors. v. R. S. Thakar, (1988) 1 SCC 638. (3) Manorama Verma (Smt.) v. State of Bihar and Ors. , 1994 Supp (3) SCC 671. 15. In all the above three cases, full wages minus the amount earned were awarded. It is significant to note that in the two citations of Hissar Central Co-operative Bank Ltd. (supra) and Union of India and Ors. (supra) relied upon by the Lucknow University, the important factors, which were taken into consideration, were the charges levelled against the respondent while in the cases cited by the petitioner the fact of the respondents having been employed elsewhere was taken into consideration. 16. There is no evidence led by the University that the petitioner of the case in hand was employed elsewhere nor any mention has been made in the counter-affidavit that he earned livelihood elsewhere and there can be no presumption that the petitioner has joined some or the other service or earned monthly remuneration by getting him engaged at some place. Therefore, granting him a meagre percentage of what was due to him on account of his monthly salary and allowances would not meet the interest of justice. The petitioner has been in mental agony during all these above twenty six years. As held above, his services were terminated without any enquiry or opportunity of hearing. It was the callous act of the Principal that he was not allowed to come to his duty. The Vice-Chancellor and the Principal were periodically informed by him that he was being forced to stay out of the college campus. There was no serious charge against him like that of misappropriation etc. , nor he was involved in commission of a misconduct calling for his termination. The allegation of his being absent from duty has not caused any loss to the University. However, since he has also not filed any affidavit that he was all through twenty six years without any source of livelihood, I, keeping in view the guidelines postulated in all the above referred decisions of the Hon'ble Supreme Court, direct that the petitioner would be entitled to claim eighty percent of his total monthly emoluments including the annual increments he might have earned during his tenure in service plus allowances as his back wages. The petitioner will also be entitled to all the consequential benefits including those of retirement and family pension. He will also get Rs. 15,000 as costs of this long drawn litigation from the Lucknow University and the Principal Sri R. S. Bisht, whose liability shall be joint as well as severer. The University in case of making the payment will be free to realize it from the Principal Sri R. S. Bisht Petition allowed. .