University of Gorakhpur v. Vidya Niwas Misra — 1968 DIGILAW 128 (ALL)

JUDGMENT W. Broome, J. - These two special appeals are directed against an order of K. B. Asthana, J., dated 18-10-1966, by which he allowed two connected writ petitions (Nos. 1835 of 1966 and 2873 of 1966) and quashed two re. solutions of the Executive Council of the Gorakhpur University, dated 7.5.1936 and 9.7.1966. 2. The facts of the case, so far as they are relevant for the purpose of these special appeals, are not in dispute. The respondent Dr. Vidya Niwaa Misra (the petitioner in the writ petitions) was appointed on 18-5-1964 to the post of Reader in the Sanskrit Department of the University of Gorakhpur on probation for two years. Shortly before the probationary period was due to expire, the Executive Council, acting under Statute 10 of Chapter 13 of the Gorakhpur University Statutes, examined his case on 7-5-1966 and passed the following resolution : - "The Council examined the case of Dr. V. N. Misra, Reader, Department of Sanskrit, Gorakhpur University, for confirmation after the expiry of the period of probation and after careful examination, having found his work and conduct not satisfactory, decided not to confirm him." This resolution was challenged by means of writ petition 1835 of 1966; but when that petition came up before a learned Single Judge of this Court for the issue of interim orders, he expressed the view that the impugned resolution, though embodying a refusal to confirm the petitioner, did not operate to terminate his services. The result was that a fresh meeting of the Executive Council had to be convened and on 9.7.1966 the following resolution was passed : - "The report of the Vice-Chancellor on the writ petition of Dr. V. N. Misra was noted and the order of the Hon'ble High Court was read. Resolved further that as Dr. V. N. Misraa period of probation as Reader expired on 17-5-1966 and in view of the fact that the Executive Council found his work and conduct during the period of probation not satisfactory it is decided not to extend his period of probation and it is further resolved that his services as Reader be and are hereby terminated." It was against this resolution that the Second Writ Petition No. 2373 of 1966 was filed. 3. 3. The writ petitions were allowed and the impugned resolutions quashed by the learned Single Judge on the ground that the action taken by the Executive Council was vitiated by failure to afford the petitioner an opportunity of explaining or meeting the case against him. The learned Single Judge was of opinion that "the phraseology of the material provisions of the Act and the Statute leave no doubt that the Executive Council functions as a quasi judicial authority and has to arrive at a finding after considering the reports of certain officers of the University and after examining the case of the teacher"; and he remarked that "the members constituting the Executive Council will not be in a position to examine the case of a teacher unless they afford him an opportunity to represent his side of the case against the material contained in such reports, if adverse to him." 4. Mr. Kacker, who appears for the University Authorities (the appellants), has contended in the first place that the writ petitions ought to have been dismissed because the petitioner had not exhausted the adequate alternative remedy provided by S. 32 of the Gorakhpur University Act. which lays down, inter alia, that "if any question arises.......... whether any decision of the University or any authority thereof is in conformity with this Act, the statutes and the Ordinance, the matter shall be referred to the Vice Chancellor and his decision thereon Shall be final". It is clear from the statements made before us by counsel for both parties that this point was raised and argued before the learned Single Judge as a preliminary objection, but he has unfortunately not dealt with it in his judgment. However, the fact that he chose to issue the writ shows clearly that the objection on the score of alternative remedy was overruled, even though the reasons which led the learned Judge to this conclusion have not been disclosed. Had we been dealing with the writ petitions ourselves, we might have felt inclined to hold that in the particular circumstances of this case the petitioner should be asked to exhaust his remedy under S. 32 of the Act before approaching this Court. Had we been dealing with the writ petitions ourselves, we might have felt inclined to hold that in the particular circumstances of this case the petitioner should be asked to exhaust his remedy under S. 32 of the Act before approaching this Court. But in view of the fact that a learned Single Judge of this Court has already exercised his discretion in the matter and has chosen to disregard the plea of alternative remedy, we do not think that it would be proper for us in the appellate stage to take a different view, particularly when it cannot be said that the course adopted by the learned Single Judge was altogether arbitrary or unreasonable. This initial argument advanced on behalf of the appellants must therefore be rejected. 5. Coming to the merits of the case, Mr. Kackers main contention is that a mere probationer has no right to insist on being heard at the time when the period Of his probation draws to a close and the question of hi3 confirmation comes up for consideration, and that there is nothing in the wording of the relevant provisions of the Act and Statutes applicable to the present case that can be interpreted as conferring such a right on the petitioner. 6. Mr. Kacker is undoubtedly correct when he contends that basically, under the ordinary law of master and servant, a probationers service can be terminated by his employer unilaterally, without affording him any opportunity to show cause against the termination. This has been pointed out in clear terms by the Supreme Court in the case of P.L. Dhingra v. Union of India, A.I.R. 1958 SC 36, in which it was observed; - "An appointment to a permanent post in Government service on probation means, as in the case of a person appointed by a private employer, that the Servant so appointed is taken on trial. The period of probation may in some cases be for a fixed period, e.g., for six months or for one year or it may be expressed simply as "on probation" without any specification of any period. The period of probation may in some cases be for a fixed period, e.g., for six months or for one year or it may be expressed simply as "on probation" without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, comes to an end if daring or at the end of the probation the servant so appointed on trial is found unsuitable and his service terminated by a notice." And again: "It is therefore, quite clear that appointment to a permanent post in a Government service, either on probation or on an officiating basis, is, from the nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time." As is clear from this last extract, however, there may be exceptions to the general rule regarding the rights of probation's, if there is any "special contract or specific rule regulating the conditions of the service." When there are statutory provisions governing the confirmation of a probationer or the termination of his services, it may well be that those provisions either specifically require or, when read in conjunction with the peculiar circumstances of the case, necessarily imply that the probationer should be heard before orders are passed. The crucial point that call for decision in the present appeals, therefore, is whether there is anything in the relevant provisions of the Gorakhpur University Act and the Statutes framed thereunder or in the surrounding circumstances of the petitioners case that would lead us to hold that the proceedings for the confirmation of the petitioner (or in the alternative for the termination of his services) on the expiry of the period of hie probation were intended to be of a quasi-judicial nature, meaning thereby that the order for confirmation or-termination could be passed only after he had been given an opportunity to be heard. 7. The relevant provision of the Act is cl. 7. The relevant provision of the Act is cl. (2) (a) of S. 28, which runs as follows: "(2) Every teacher appointed under subsection (1) shall, in the first instance, be on probation for such period as may be prescribed and he shall not be confirmed: - (a) if he is a teacher of the University except by the order of the Executive Council after considering the reports of the Vice-Chancellor and the Head of the Department and the Dean concerned." And the relevant statute, which is no. 10 in Chapter XIII, is couched in the following terms: "10. The Executive Council shall, within six months of the date on which the probationary period of a teacher expires, examine his case, and if the work and conduct are found satisfactory confirm him or otherwise pass such orders as it deems fit." According to these provisions, before a probationary teacher is granted or refused confirmation, the Vice-Chancellor, the Head of the Department and the Dean concerned have first to submit reports about his work and conduct to the Executive Council; and then the Executive Council has to "consider the reports", "examine his case" and decide whether his work and conduct have been satisfactory or not. It is important to note that the 'reports referred to here are reports about work and conduct only; and it is obvious that in this context the word report cannot be equated with a mere opinion or a bare conclusion but must connote a documented state. mnt of relevant facts, together with the conclusions drawn therefrom. It follows that when the Executive Committee proceeds to consider these reports, it is dealing with objective material and is expected to give its decision in a purely objective manner. In such circumstances there is a clear presumption that the Executive Council is meant to act as a quasi, judicial authority and its proceedings will be governed by the principles of natural justice, with the result that the Council will be precluded from taking action adverse to the probationer without affording him a reasonable opportunity to meet the case set up against him. Mr. Mr. Kacker has tried to argue that questions of policy or expediency might also be considered by the Executive Council while coming to its decision and that consequently that decision might be of a subjective character; but one has only to look at the wording of statute 10 to see that this argument is completely untenable. Statute 10 shows that "if the work and conduct are found satisfactory", the Executive Council is bound to confirm the probationer; and it is obvious that it has to confine its attention to a consideration of his work and conduct only. There can be no doubt in the circumstances that the decision taken under S. 28 (2) (a) and Statute 10 regarding the confirmation of a probationer or the termination of his services is of a purely objective nature; and it will be presumed that in arriving at that decision the Executive Council is meant to act quasi, judicially and to comply with the basic rules of natural justice. 8. Further support for this view is to be found in the surrounding circumstances of the case. An elaborate procedure has been laid down in Statutes 2 to 7 of Chapter XIII of the Gorakhpur University Statutes for the appointment of teachers on probation by a Selection Committee composed of the Vice-Chancellor, the Daan of the Faculty and the Head of the Department concerned, assisted by a panel of experts; and it is certainly arguable that it cannot have been intended that a candidate selected after such a rigorous appraisal of his worth should be liable to be discarded in a summary manner on the expiry of his probationary period, without being given the least opportunity of meeting adverse reports on his work and conduct. Furthermore, an order of termination passed in accordance with Statute 10 is bound to be based on a finding that the probationers work or conduct (or both) have been found unsatisfactory; and, as in the present case, a declaration to this effect is likely to be incorporated in the Executive Committees resolution. Furthermore, an order of termination passed in accordance with Statute 10 is bound to be based on a finding that the probationers work or conduct (or both) have been found unsatisfactory; and, as in the present case, a declaration to this effect is likely to be incorporated in the Executive Committees resolution. Such a declaration is bound to have an extremely adverse effect on the future career of the person concerned, for it will undoubtedly prejudice hie chances of securing alternative employment with another University, and it would obviously be highly unfair to allow him to be branded with such a stigma, without first giving him an opportunity to meet the charges levelled against him. 9. In the analogous case of Board of High School & Intermediate Education, U.P. v. Ghanshyam Das Gupta, A.I.R. 1962 SC 1110, the Supreme Court held ; "the manner of the disposal, based as it must be on materials placed before it, and the serious effects of the decision of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast on the Committee to act judicially in this matter, particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinees before it can take any action. . .. We are of opinion that the Committee. ... is acting quasi, judicially and the principles of natural justice, which require that the other party must be heard, will apply to the proceedings before the committee." Both the factors referred to in this ruling, viz. (a) the objective appraisal of facts by the Committee and (b) the serious consequences of the Committees decision for the person concerned, are to be found in the present case as well. Here too, as pointed out above, the decision has to be based on an objective consideration of factual reports; and the declaration given by the Committee regarding the unsatisfactory nature of the probationers work and could not is calculated to have a prejudicial effect on his future career. There is every reason, therefore, to hold that the proceedings of the Executive Committee in a case like the present are quasi judicial in character and that the Committee is consequently obliged to comply with the basic principle of natural justice enshrined in the maxim audi alteram partem (hear the other side). 10. There is every reason, therefore, to hold that the proceedings of the Executive Committee in a case like the present are quasi judicial in character and that the Committee is consequently obliged to comply with the basic principle of natural justice enshrined in the maxim audi alteram partem (hear the other side). 10. A subsidiary argument put forward by learned counsel for the appellants is that no writ could issue to enforce a mere contractual obligation between the University and one of its employees. In this connection reliance is placed on the Privy Council decision in Vidyodaya University of Ceylon v. Silva, (1964) 3 All ER 865, in which it was held that teacher appointed by the University in question were more employed servants and that the relief of certiorari was not available to them against the summary termination of their employment. That case however is clearly distinguishable from the one with which we are at present concerned, for the judgment contains a specific mention of the fact that there had been no failure to comply with statutory provisions. In the present case, on the other hand, the petitioner's contention was that the requirements of the Gorakhpur University Act and Statutes, which clearly have statutory force, have been infringed; and if this was so, he was clearly entitled to ask for a mandamus to be issued to the University authorities to compel them to comply with those requirements. 11. The result is that we find no merit in any of the contentions advanced on behalf of the appellants. These special appeals accordingly fail and are dismissed with costs.