TMI Blog1961 (1) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... aras Hindu University, for reasons with which we are not concerned, had been deteriorating, and a situation had arisen which required intervention immediately. The President of India, in his capacity as Visitor and in exercise of the powers conferred by s. 5(2) of the Banaras Hindu University Act, 1915, appointed a Committee of Enquiry (known as the Mudaliar Committee) consisting of : 1. Dr. A. L. Mudaliar (President) 2. Mr. M. C. Mahajan 3. Dr. P. Subbarayan 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 some of the Institutions of the University, and to suggest remedies and measures of reform for the betterment of academic life and efficient functioning of the University. The Committee made a report suggesting that a Screening Committee should be appointed to review the appointments made to the reaching staff and the work of the teaching staff, and that action should be taken in the light of the findings of the Screening Committee. 4. On June 14, 1958, the President of India promulgated an Ordinance (IV of 1958) to amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Government from among persons who have had administrative or other experience in educational matters, (3) It shall be the duty of the Reviewing Committee to examine the case of every person referred to it by the Solicitor-General; and the Reviewing Committee shall, after holding such inquiry into the case as it may think fit, and after giving to the person concerned an opportunity of being heard, if he so desires, forward its recommendations to the Executive Council. (4) The meetings of the Reviewing Committee shall be convened by such person as may be appointed 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 may 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 Committee, the Executive Council shall give him a reasonable opportunity of being heard. 6. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 a mention that the action was taken under cls. 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 February 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 explanations were ordered to be filed by Resolution No. 103 passed on the same day. Four Resolutions were also passed terminating the services of the other appellants belonging to Group II. 11. It was after these Resolutions were communicated that the eight petitions were filed by the appellants in the High Court of Allahabad. The High Court by a common judgment, which is under appeal, dismissed all the petitions with costs. 12. The case of the appellants, broadly stated, is that the Executive Council could not take recourse to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or additional Statutes or may amend or repeal the Statutes; but every new Statute or addition to the Statutes or any amendment or repeal of a Statute shall require the previous approval of the Visitor who may sanction, disallow or remit it for further consideration. 15. Section 4A of the Act invested the University with powers, and sub-ss. (7) and (13) may be quoted here : (7) to institute professorships, readerships lectureships and other teaching posts required by the university and to appoint persons to such professorships, readerships, lectureships and other posts; (13) to create administrative, ministerial and other necessary posts and to make appointments thereto. 16. Section 7 of the Act named the officers and authorities of the University, but power was reserved to the University to declare, by statutes, other officers and authorities of the University. 17. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een. Statutes No. 18 was amended in 1958, and is referred to as amended. It 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 administrative 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 University, and such Professors, Readers, Lecturers and other members of the teaching staff, as may be necessary, on the recommendation of Selection Committees constituted for the purpose : (Proviso omitted) (ii) to appoint members of the administrative staff or to delegate the power of appointment to such authority or authorities, or officers as the Executive Council may, from time to time, by resolution, either generally or specially direct;..... 23. The power of appointment was thus conferred by the Statutes on the Executive Council. 24. We now turn to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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. 28. The dispute this time arises from the careless use of the word or . The Ordinance mentions four reasons for termination of services, which are numbered (i) to (iv). In each of those 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 commendable. Then follow a 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 a four months' notice, etc. The number (v) and the semi-colon between mentioned above and or do not permit this reading. The difficulty, however, does not end there. If we read the fifth clause as connected independently with the opening words, we get this : The Executive Council shall be entitled to terminate the engagement of an employee for ...................................................................... (v) after giving four months' notice........ ; which makes the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 said, had arisen in the University in the past; and though the Mudaliar Committee had suggested a Screening Committee to go into the cases of all teachers, Parliament thought it necessary that before any case reached the Screening Committee (renamed the Reviewing Committee) it should be scrutinised 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 was detrimental to the interests of the University. The reasons for such belief had to be recorded briefly and the Resolution together with the connected papers had to be sent to the Solicitor-General. In the case of a teacher who was a member of the Executive Council, the Executive Council was not to consider the allegations but to send the papers to the Solicitor-General. The Solicitor-General had to decide if there was a prima facie case for enquiry, and then he was to refer suitable cases to the Reviewing Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases of these appellants had not been sent to the Solicitor-General and the Reviewing 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. 37. The University relies on three arguments in this connection. It is first contended that the powers of the University were cumulative, and that the University could resort to any of the remedies open to it. Reliance is placed in support of this argument on Shankar Sahai v. Din Dial I.L.R(1889) . 12 All. 409, (observations of Mahmood, J., at p. 418), Om Prakash Gupta v. State of U.P. [1957] S.C.R. 423, The State of Madhya Pradesh v. Veereshwar Rao Agnihotry [1957] S.C.R. 868, Brockwell v. Bullock (1889) 22 Q.B.D. 567, Seward v. Vera Cruz (1884) 10 A.C. 59 and Barker v. Edger [1898] A.C. 748 . 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 can be invoked unless one remedy is expressly or by necessary implication excluded by the other (See State of Kerala v. G. M. Francis and Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure, it was not possible to undo everything and rely upon other powers, which were not only subordinate but were clearly not available in those special circumstances which led to action under Statute No. 30. 40. The next argument is that Statute No. 30 itself left liberty of action, inasmuch as clause 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 recommendations of the Reviewing Committee, but lay a duty to form an opinion. The words do not give a discretion to take action outside the Statute. 41. Lastly, it is argued that the Executive Council as the appointing authority had the power also to dismiss, and reference is made to Sections 4(7) and 4(13) of the Act and s. 16 of the General Clauses Act. None can deny that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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