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Syed Viquar Mohd. Vs. Jawaharlal Nehru Technological University, Hyderabad - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 3887 of 1981
Judge
Reported in(1984)ILLJ123AP
ActsJawaharlal Nehru Technological University Act, 1972 - Sections 23(1) and 24(1); Osmania University Service (Discipline and Appeal) Rules - Rule 7; Constitution of India - Articles 226 and 311(2)
AppellantSyed Viquar Mohd.
RespondentJawaharlal Nehru Technological University, Hyderabad
Excerpt:
.....23 (1) and 24 (1) of jawaharlal nehru technological university act, 1972, rule 7 of osmania university service (discipline and appeal) rules and articles 226 and 311 (2) of constitution of india - service of appellant terminated by respondent-university on ground of not joining duty after expiry of leave period - petition against such termination - contended that no show cause notice issued to him - respondent-university did not complies with mandatory procedure prescribed under rule 33 (2) of statute - petitioner has a right to know specific charges levied against him - held, impugned order declared void and illegal as violative of principles of natural justice. - - the petitioner again extended the leave for one month from 1st august, 1978 to 31st august, 1978, saying that..........dated 14th november, 1978, by registered post to the permanent address as given in his leave letter dated 3rd july, 1978, directing his to explain why his absence should not be treated as unauthorised absence and further action should not be taken according to rules. the registered cover was returned to the university by the postal authorities with an endorsement on the envelope that the petitioner had 'let india'. subsequently, a leave letter dated 15th december, 1978, was received in the office on 19th december, 1978, through another upper division clerk working in b section in which the petitioner had requested for grant of leave for a further period of six months on the strength of a medical certificate issued by civil assistant surgeon, hyderabad. since the petitioner.....
Judgment:
ORDER

1. This is an application for the issue of a writ of mandamus directing the respondent to continue the petitioner in service as Superintendent of the Jawaharlal Nehru Technological University after declaring the proceedings No. 592/C3/1976, dated 28th June, 1979, issued by the respondent University as illegal and void and to grant all consequential benefits such as salary allowances etc., to the petitioner.

2. It is alleged by the petitioner in this writ petition that he joined service as a Lower Division Clerk in the Technical Education Department, Government of Andhra Pradesh on 18th April, 1961, and was promoted to the post of Upper Division Clerk on 10th April, 1968. His services were regularised in the category of Upper Division Clerks with effect from 31st May, 1969 and the completed his probation on 31st August, 1969.

3. While he was working as Upper Division Clerk, the Jawaharlal Nehru Technological University, hereinafter referred to as the 'University' was formed in the year 1972 and the College of Fine Arts and Architecture, Hyderabad, came under the management of the Jawaharlal Nehru Technological University. The Government issued G.O.Ms. No. 200, Education, dated 26th February, 1975, calling upon the Government servants to exercise options before 31st May, 1975 to opt to remain either in the service of the University or the Government. The petitioner, however, did not exercise the option. But according to the Rules, proceedings No. 116-C/1975 dated 25th June, 1975, were issued stating that the petitioner is deemed to have been absorbed in the service of the University with effect from 2nd October, 1972 as an approved probationer.

4. The petitioner was subsequently prompted to the post of Superintendent by the University its proceedings Rc. 2493/C/75, dated 3rd October, 1975. His services in this category of Office Manager/Superintendent were regularised with effect from 9th October, 1975, forenoon by the proceedings No. 5982/C2/78, dated 6th October, 1978.

5. Subsequently, the petitioner applied for earned leave for 57 days from 5th May, 1978 to 30th June, 1978, stating that he wished to go to Utter Pradesh to meet his relative and the same was granted to him. Later on, he extended his leave for a period of one month on half pay from 1st July, 1978 to 31st July, 1978, on the ground that he had fallen ill and was suffering from fever. The leave from 1st July, 1978 to 31st July, 1978 was granted with instructions to the petitioner to apply to the authorities in advance for reporting orders. The petitioner again extended the leave for one month from 1st August, 1978 to 31st August, 1978, saying that he was still not feeling well and was undergoing treatment. He was informed by the University that the leave applied for would be sanctioned soon after he reported for duty. Nevertheless, the petitioner failed to report for duty on 1st September, 1978 and extended the leave for a further period and extended the leave for a further period of six months from 1st September, 1978 to 28th February, 1979 on the ground of ill-health. On production of Medical Certificate, the leave on half pay was granted for 76 days with effect from 1st August, 1978 to 15th October, 1978 and again from 16th October, 1978 to 30th November, 1978. The leave of the petitioner was due to expire on 30th November, 1978 and he was expected to report for duty on the following day. However, the petitioner neither reported for duty on expiry of his leave on 30th November, 1978 nor did he submit any application for the extension of leave. Since the petitioner failed to join duty after the expiry of leave, the University, issued a notice No. 592/C3/1976, dated 14th November, 1978, by registered post to the permanent address as given in his leave letter dated 3rd July, 1978, directing his to explain why his absence should not be treated as unauthorised absence and further action should not be taken according to rules. The registered cover was returned to the University by the Postal authorities with an endorsement on the envelope that the petitioner had 'Let India'. Subsequently, a leave letter dated 15th December, 1978, was received in the office on 19th December, 1978, through another Upper Division Clerk working in B section in which the Petitioner had requested for grant of leave for a further period of six months on the strength of a medical certificate issued by Civil Assistant Surgeon, Hyderabad. Since the Petitioner had already availed of the leave over such a long stretch of time, the leave requested for in the letter dated 15th December, 1978, was refused by the University, and he was asked to report for duty immediately through a registered letter addressed to his permanent address. This registered letter also was returned by the Postal authorities with an endorsement 'Left India'. It is stated in the counter-affidavit filed by the respondent-University that the University published a notice vide its office Notice No. 592/C3/1976, dated 21st December, 1978, in two prominent dailies i.e., Hindu and Siasat on 2nd March, 1979 and 25th February, 1979 respectively asking the petitioner to submit his explanation within one month as to why his services should not be terminated for his unauthorized absence. The explanation notice was also sent through Sri Mohd. Ahmed Hussain, Upper Division Clerk, B-Section, who had earlier brought the letter dated 15th December, 1978, for extension of leave from the petitioner, to be handed over to the petitioner, or to his brother, has the case may be. However, the said Hussain expressed his inability to deliver the notice on 23rd March, 1979.

6. The petitioner sent yet another leave letter dated 18th March, 1979 from his Bombay address asking for sanction of six months leave to him with effect from 1st March, 1979. It is significant to note that this leave letter was sent was sent by registered post giving the address of the petitioner in Bombay, but it had a postal stamp of 'Palm Air Port, New Delhi'. After the receipt of the said application, the respondent-University addressed a letter vide reference No. 592/C3/1976, dated 6th April, 1979, to the petitioner to his address in Bombay as well as in Hyderabad asking him to meet the Vice-Chancellor within two weeks in connection with his request for leave. The registered sent by the University to his Bombay address was acknowledged, while the letter addressed to the petitioner to his Hyderabad address was returned undelivered. In spite of the fact that the letter sent to the petitioner to his Bombay address was duly acknowledge the petitioner did not turn up to meet the Vice-Chancellor. The University thereafter issued a show cause notice dated 15th May, 1979, stating inter alia as follows :

'In the communications Sri Mehdi was asked to meet the Vice-Chancellor for discussion regarding the leave applied for. Sri Mehdi failed to meet the Vice-Chancellor. He is hereby informed that the leave applied for is refused and he is directed to join duty forth with, failing which action will be taken to terminate his service without any further notice to him'.

This show cause notice was sent to the known address of the petitioner not at Bombay and Hyderabad wherein he was directed to join duty forthwith, failing which action was to be initiated against him for termination of his service. The letter addressed to his Bombay address was delivered, but the letter addressed to him Hyderabad address was again returned with the postal Endorsement 'left' presumably meaning there by that he was not in India. The petitioner failed to comply with the notice dated 15th May, 1979, and he neither reported for duty nor sent any explanation to the notice issued to him. The University then issued proceedings No. 592C/3/1976, dated 28th June, 1979, terminating the services of the petitioner with effect from 1st December, 1978.

7. The principal contention of Sri V. Jogayya Sarma, the learned Counsel for the petitioner, is that the petitioner was not given any notice calling upon hid to show cause why his services should not be terminated and therefore, the impugned order terminating his services is void and illegal being contrary to the provisions of Rule 33(2) of Statue No. 14. It is further contended by the learned Conceal for the petitioner that the Memo. Rc. No. 592/C3/76, dated 15th May, 1979, cannot be termed as a show cause notice as the very wording of that memo indicates that it merely informed the petitioner that the leave applied for by him was refused and he was directed to join duty forthwith failing which action would be taken to terminate his services.

8. At the outset it may be stated that the Jawaharlal Nehru Technological University is a body corporate incorporated under the Jawaharlal Nehru Technological University Act (No. XVI of 1972) having perpetual succession and a common seal. The University in question being a creature of the above statute, all its actions are fully controlled by the above Act and the various statutes made thereunder. In exercise of the powers conferred by sub-s. (1) of S. 23 of the above Act, the Governor of Andhra Pradesh has made Statute No. XIV, hereinafter referred to as the 'statute' dealing with the services of the University. For the purpose of this writ petition, we are concerned with Rule 33 of the above Statute which reads as under :

Rule 33 : Disciplinary proceeding : (1)

'The Following penalties may, for good and sufficient reason, and as hereinafter provided, be imposed on any member of the service of the University namely :

(i) censure,

(ii) withholding of increments or promotions,

(iii) recovery of the whole or part of any pecuniary loss caused to the University,

(iv) reduction to a lower service, grade or post or to a lower time scale or to a lower grade in a time scale,

(v) compulsory retirement,

(vi) removal from service which shall not be a disqualification for future employment under the University,

(vii) dismissal from service which shall ordinarily be a disqualification for future employment in the University.

(2) No order imposing on any member of the service any of the penalties specified in items (iv) to (vii) above shall be passed by any authority subordinate to that by which he was appointed and except after an enquiry has been held and the member concerned has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

* * * * * *'

It is evident from a reading of Rule 33(2) that the working of the above Rule is in pari materia with that of Art. 311(2) of the Construction. That being so, though the petitioner is not governed by the provisions of Art. 311(2) of the Constitution in this case, he is entity to the same benefits and protection which are available to a public servant under Art. 311(2) of the Constitution. Under Rule 33(2) of the Statute, it has been provided that no members of the service can be removed from service except after an enquiry held in this regard and the member concerned has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

9. Now the case of the petitioner is that he was granted leave upto 30th November, 1978, and after the expiry of his leave, a notice was published in Hindu and Siasat on 2nd March 1978 and 25th February, 1979, respectively asking the petitioner to explain with one month from the date of the publication of the notice why his service should not be terminated. Thereupon, the petitioner submitted his application dated 18th March, 1979, to the University authorities stating that after recovering from illness, he was intending to report for duty on 1st March, 1979, but due to domestic disputes, he was not in a position to do so. In that application, he prayed that he may be granted leave from 1st March, 1979, to 31st August, 1979. However, the University issued the memo dated 15th May, 1979, which refers to the letter of the petitioner dated 18th March, 1979, stating, inter alia, that his leave has been refused and he was directed to join duty forthwith, failing which action would be taken to terminate his services. Since the petitioner failed to join duty as directed by the memo dated 15th May, 1979, the impugned proceedings dated 28th June, 1979, terminating his services were issued which were received by the petitioner on 21st April, 1981. It is the further case of the petitioner that it was only after the joining report was given by him on 16th March, 1981, a letter No. 592/C3/76, dated 24th March, 1981, was issued by the University to the petitioner stating that his services were terminated after observing all the formalities. A perusal of the record clearly shows that the petitioner has been absent from duty from 1st December, 1978 to 16th March, 1981, when he reported for duty i.e., roughly for a period of about three years and three months. There is nothing on record to show that a show cause notice as required under Rule 33(2) was issued to the petitioner by the University. The learned Counsel for the respondent-University, Sri M. Ramaiah, however, contended that the memo, dated 15th May, 1979, should be construed as a show cause notice contemplated by Rule 33(2) as the petitioner has been fully informed in that memo. That the leave applied for by him has been refused and that action would be taken to terminate his services without any further notice to him and that therefore, there was in fact and in fact and in substance compliance with the procedure prescribed in the Rule 33(2) of the Statute. The relevant part of the said memo. Dated 15th May, 1979 has been extracted in the preceding paragraphs of this judgment and it is clear from a reading of the said memo. That the object of issuing that memo by the University was to inform the petitioner that he should join duty forthwith failing which action would be taken for termination of his services. Now it cannot be said that a notice, which mentions something about a future course of action to be taken against the petitioners, can be termed as a show cause notice in compliance with the express mandatory procedure prescribed under Rule 33(2). Admittedly, the University, has not framed a charge against the petitioner nor has it given any indication that an enquiry was to be held with regard to his unauthorised absence from duty. The expression 'reasonable opportunity' occurring in Rule 33(2) of the Statute means that the delinquent officer should be furnished with a specific charge in clear and unambiguous words and the allegations on which it is based to enable him to refute the charge levelled against him and establish his innocence. By no stretch of imagination, can a memo in general terms directing the petitioner to join duty forthwith under the threat of action to terminate his services be regard as a show cause notice as contemplated under Rule 33(2). The protection flowing from Rule 33(2) for the benefit of the members of the service cannot be taken away in this casual fashion.

10. The point involved in this writ petition is directly covered by the decision of the Supreme Court in Jai Shanker v. State [1966-II L.L.J. 140]. That was a case where a Head Warden of the Central Jail, Jodhpur, a permanent servant of the State, was removed from service for over staying his leave. On 14th April, 1950, he proceeded on leave for two months ending on 13th June, 1950. He applied for extension of leave on medical grounds for twenty days, as he had fallen ill and again for ten days. Later he asked for an extension by a month. He was to join duty on 13th August, 1950. On 14th August, 1950, he was told that no more leave would be granted to him and that his transfers to Jaipur, made while he was ill at Hyderabad, would not be cancelled. He returned to Jaipur from Hyderabad on 1st September, 1950, and applied for further leave. He made several applications. His last application was sent by registered post, supported by a medical certificate, on 3rd November, 1950, asking for leave till 11th November, 1950. To his last and some of the earlier applications for leave, he received no reply and on 8th November, 1950, he received a communication from the Deputy Inspector General, Prisons, that he was discharged from service from 13th August, 1950. In these circumstances, the Supreme Court held that it was necessary that the Government should have given the person concerned an opportunity of showing cause why he should not be removed from service and that the removal of a Government servant from service for overstaying his leave without giving an opportunity to him to show cause against the proposed termination was illegal notwithstanding the Regulation governing his service conditions that any individual who absents himself if without permission after the end of his leave would be considered to have sacrificed his appointment. The facts of the case on hand are in no way different from the facts of the above case. I am conscious of the fact that in the Supreme Court case, the petitioner therein had the protection of Art. 311(2) of the Constitution, whereas in the present case, the petitioner is having the protection under Rule 33(2). But that does not come in the way of applying the ratio of the decision of the Supreme Court to the facts of the case on hand, for the procedure prescribed by Art. 311(2) of the Constitution is analogous to the one prescribed by Rule 33(2).

11. The next decision directly on the point is the one rendered by this High Court in W.P. No. 5184 of 1980, on 2nd March, 1981. In that case, the petitioner, who was a lecturer in Chemistry in the Osmania University College of Women, Hyderabad, was absent from duty for well over a period of five years and her services were terminated by way of removal from the University service. Subsequently yet another order was passed by the Vice-Chancellor stating that the petitioner has ceased to be in the employment of the University on account of her continuous absence from duty for more than five years under Art. 29 of the H.C.S. Rs. Manual. After an elaborate discussion of the procedural requirements of Rule 7(a) of the Osmania University Service (Discipline and Appeal) Rules (The language of which is substantially the same as that of Art. 311(2) of the Constitution), it was held that the action taken by the University was clearly void and illegal for want of compliance with the procedure laid down in Rule 7 of the above rules. It was further held in the said case that the action taken by the Vice-Chancellor of the University was also on the ground of violation of the principles of natural justice.

12. Applying the principle laid down in the 10 above decisions, the inevitable conclusion to be drawn in this case also is that the authorities of the Jawaharlal Nehru Technological University have not complied with the mandatory procedure prescribed under Rule 33(2) of the Statute. Rule 33(2) of the Statute made by the Governor of Andhra Pradesh in exercise of the powers conferred on him under sub-s. (1) if S. 24 of the Act is mandatory and it imposes a statutory obligation on the respondent-University to follow the procedure prescribed therein. No doubt, the petitioner had been absent from duty from 1st December, 1978 to 16th March, 1981, and his whereabouts in India were also not known to the University for sometime. Nevertheless, on that score, it cannot be said that the petitioner is not entitled to the protection under the provisions of Rule 33(2) if the Statute. I may reiterate that the petitioner has a right to know the specific charge that is leveled against him and also the allegations on which the charge is based by the University and he must be given a reasonable opportunity to show cause why his services should not be terminated. Admittedly the termination of the services of the petitioner was by way of punishment for his unauthorised absence from duty. A proper enquiry specifying the charge against the petitioner and affording him a reasonable opportunity to explain his conduct as require under Rule 33(2) is therefore necessary before any order terminating his services is passed against him. But the same is lacking in this case. Viewed in the background of the foregoing discussion, the impugned order is also void for there was violation of the principles of natural justice. Therefore, the proceedings No. 522/C3/76, dated 28th June, 1979, of the respondent-University are declared void and illegal.

13. Sri M. Ramiah, the learned Counsel for the respondent-University has submitted that the petitioner has an alternative remedy by way of an appeal to the Council under Rule 33(5) of the Statute against the impugned order within a period of three months from the date of the Order. The existence of an inefficacious alternative remedy is not a bar for exercising the jurisdiction under Art. 226 of the Constitution. I think this is a fit case where this Court should exercise its extraordinary jurisdiction in view of the special circumstance obtaining in this case namely, that there was not only a flagrant violation of the principles of natural justice but also contravention of the express mandatory procedure prescribed by Rule 33(2) of the Statute and further any appeal which may now be filed by the petitioner under Rule 33(5) to the Council would be hopelessly barred by limitation at this distance of time. The contention of the learned Counsel the respondent is therefor rejected.

14. In the result, the writ petition is allowed to the extent indicated above. But this will not preclude the respondent-University from making a fresh enquiry against the petitioner, if it so chooses, in accordance with law. In the circumstances of the case, there will be no order as to costs.


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