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1954 DIGILAW 56 (KER)

Gopalakrishna Iyer v. University of Travancore

1954-03-15

M.S.MENON, SUBRAMONIA.IYER

body1954
Judgment :- 1. This is a petition by a dismissed clerk of the University of Travancore praying that this Court should quash the order of dismissal and direct his reinstatement. The letter from the Registrar of University to the Curator, Manuscripts Library, Trivandrum, No. UA6/936/53, dated the 11th May 1953, in pursuance of which the petitioner's services were terminated with effect from the forenoon of the 12th May 1953 reads as follows: "I have to inform you that the Syndicate having considered the reports of the audit of the accounts of the University Manuscripts Library and noted the irregularities disclosed therein and further having further considered the explanations that have been given by the Curator Sri. P.K. Narayana Pillai and the Clerk Sri. H. Gopalakrishna Iyer, has come to the conclusion that the Clerk Sri. H. Gopalakrishna Iyer has been systematically misappropriating funds and fabricating documents to cover up such misappropriation. The Syndicate has therefore resolved that Clerk Sri. H. Gopalakrishna Iyer be dismissed forthwith from service. Accordingly the Clerk Sri. H. Gopalakrishna Iyer has been dismissed from service with effect from the forenoon of 12th May, 1953. The period from 30th August 1951 to 23rd October, 1952, when he was kept under suspension pending enquiries is treated as suspension." 2. According to Mr. T.S. Krishnamoorthy Iyer, learned counsel for the petitioner: (1) the Vice Chancellor alone - not the Syndicate- is competent to pass an order of dismissal in respect of his client; (2) Arts. 311 and 320 of the Constitution apply to him by virtue of S. 28(b) of the Travancore University Act, 1113; and in any view of the matter, (3) the rules framed by the Government of Travancore-Cochin regarding the procedure to be adopted in the matter of disciplinary action against Government servants by their Order R. Dis.9033/51/CS, dated 3.4.51, are applicable to his client by virtue of S. 28(b) of the Travancore University Act, 1113. His contention is that the Syndicate and not the Vice Chancellor has passed the order of dismissal, that the provisions of Art. 311 and 320 of the Constitution and rules of the Government of Travancore-Cochin mentioned above have been violated, and that as a result the order of dismissal should be set aside and the petitioner reinstated in the service of the University. 3. 3. We feel no doubt that the order of dismissal is bad for noncompliance with the rules mentioned above regarding the procedure to be adopted in the matter of disciplinary action and in view of this we do not propose to consider the validity or otherwise of the other points urged before us. 4. S. 28(b) of the Travancore University Act, 1113, reads as follows: "Notwithstanding anything contained in this Act, all Professors, Assistant Professors, Lecturers, and other officers and servants now employed in the Colleges specified in S. 20(a) and all such as may be employed hereafter for carrying on the work of the University, shall, unless a reservation to the contrary is made at the time of their appointment, be deemed to be employees holding appointments under our Government, and shall in all respects be governed by the rules framed by our Government and in force for the time being in respect of such employees". The petitioner was recruited after the Act came into force and there was no "reservation to the contrary" at the time of his appointment which will make the governmental rules inapplicable to him. It is admitted that the rules in force regarding the procedure for disciplinary action against Government servants throughout the relevant period were those contained Order R.Dis.9033/51/CS, dated 3.4.1951 and that if the said rules apply to the petitioner by virtue of S. 28(b) of the Travancore University Act, 1113 the order of dismissal is bad for non-compliance with those rules in important and essential particulars. 5. R.1(2) for example, provides: "The authority competent to award the penalty shall record his specific findings on each charge and grounds on which they are based and the provisional conclusions in regard to the penalty to be imposed. The person charged shall then be supplied with a copy of the report of the officer conducting the enquiry and he should be called upon to show cause, within a reasonable time for ordinarily exceeding one month, against the particular penalty proposed to be inflicted. Any representations in this behalf submitted by the person charged shall be taken into consideration before final orders are passed". and the petitioner was certainly not called upon to show cause against the particular penalty proposed to be imposed, namely, dismissal from service, as directed in the rule extracted above. 6. Any representations in this behalf submitted by the person charged shall be taken into consideration before final orders are passed". and the petitioner was certainly not called upon to show cause against the particular penalty proposed to be imposed, namely, dismissal from service, as directed in the rule extracted above. 6. S. 240(3) of the Government of India Act, 1935 provided: "No such person aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." and the Federal Court by a majority held in AIR 1945 Federal Court 47 (Secretary of State v. I.M. Lall) that "The real point of the sub-section is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed. That in our judgment involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or adequately, summarised form, the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction of rank". The Privy Council in appeal, AIR 1948 PC 121 (High Commissioner for India v. I.M. Lall) agreed with the view taken by the majority of the Federal Court. 7. The argument of the learned Advocate General who appeared on behalf of the University was not that the rules embodied in Order R.Dis.9033/51/CS, dated 3.4.1951, were complied with but that those rules were unavailable to a person like the petitioner and that the order of dismissal should be sustained as there has been a careful enquiry and no violation of the rules of natural justice. To accept the contention will be to give the go-by to S. 28(b) of the Travancore University Act, 1113, which definitely provides that employees of the University like the petitioner shall be "deemed to be employees holding appointments under Our Government and shall in all respects be governed by the rules framed by Our Government and in force for the time being in respect of such employees". 8. As stated by Lord Asquith in (1951) 2 Al1.E.R. 587: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. This passage has been quoted with approval by Mr. Justice Mahajan in AIR 1953 Supreme Court 244. 9. The University of Travancore, no doubt, is a body corporate with perpetual succession and a common seal and may sue and be sued in its own name, but its servants as a result of S. 28(b) of the Travancore University Act, 1113, have to be deemed to be employees holding appointments under the Government and as in all respects governed by the rules framed by the Government and in force for the time being in respect of Government servants. It follows that the order of dismissal which is not in compliance with the rules laid down for Government servants in the matter of disciplinary action has to be quashed and we direct accordingly. As to what future enquiry or disciplinary action should be taken against the petitioner under the said rule is a matter on which we are naturally not called upon to express any opinion in these proceedings and we must desist from doing so. 10. The petition will stand allowed to the extent indicated above. The respondent will pay the costs of the petitioner, advocate's fee Rs. 150/-. Allowed.