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1989 DIGILAW 854 (ALL)

Nand Kumar Singh v. Banaras Hindu University

1989-11-23

R.A.SHARMA, V.K.KHANNA

body1989
JUDGMENT R.A. Siiarma, J. - Petitioner was a Lecturer in the Department of Medicines, Institute of Medical Sciences of Banaras Hindu University (here-in-after referred to as B. H. U.) The petitioner got an assignment as a Lecturer in the Department of Medicines in A1-Arab University, Benghazi, Libya in January, 1987 for a period of two years. The petitioner accordingly applied for leave. B. H. U., however, sanctioned extra ordinary leave to the petitioner for a period of one year with effect from 1-3-1987. Before the expiry of one year leave, petitioner again applied for earned leave for a period of four months, which it is alleged by the petitioner, was sanctioned and this leave was valid up to 30-6-1988. As the petitioner's assignment in Libya was for two years, this time he applied for half pay leave and earned leave for 150 days with effect from 1-7-1988. It appears this leave was not granted The petitioner thereafter moved several applications for leave but the leave was not granted by B. H. U. On 4-11-1988, the Assistant Registrar of B H. U. informed the petitioner that no leave is admissible to him beyond 5-3-1988 and further requested him to resume his duties in B H. U. immediately. The petitioner however, did not resume his duties in B. H. U. and continued to work in Libya. The University authorities sent a telegram and a registered letter dated 17-12-1988 directing the petitioner to resume his duties upto 31-12-1988 and in case he fails to do so, it will be presumed that he has abandoned his employment. This letter was received by the petitioner on 24-12-1988. Petitioner however, did not resume his duties in B. H. U. and consequently the University appointed Dr. Ravi Tandon in place of the petitioner. Dr. Tandon has also been confirmed on that post before filing this writ petition. When the petitioner came back to India, he requested the University to reconsider his case. Petitioner was informed by the letter dated 3-2-1989 that the Executive Council of B H. U. in its meeting held on 16/17-1-1989 has resolved that the services of the petitioner be deemed abandoned as his leave expired in March, 1988 and opportunity granted to him to rejoin, has not been availed. This decision of the Executive Council dated 3-2-1989 was received by the petitioner in the first week of February, 1989 itself. This decision of the Executive Council dated 3-2-1989 was received by the petitioner in the first week of February, 1989 itself. It is against this order/resolution of the Executive Council dated 3-2-1989 that the petitioner has filed this writ petition before this court in the month of November, 1989. 2. Notice of the writ petition was served on the learned counsel for B. H. U. and we have heard the learned counsel for the petitioner and B. H. U. at the admission stage. After hearing the learned counsel for the parties. We are of the opinion that this is not a fit case to interfere in exercise of our powers under Article 226 of the Constitution of India, as the petitioner has an efficacious alternative remedy before the Visitor, who is the President of India. 3. Section 5 (7) of the Banaras Hindu University Act (here-in-after referred to as the Act) empowers the Visitor to annul any proceeding of the University, which is not in conformity with the Act, the Statutes or the Ordinances. Section 5 (7) of the Act is quoted below : "5. (7) without prejudice to the foregoing provisions of this Section the Visitor may, by order in writing annul any proceeding of the University which is not in conformity with this Act, the Statutes oi the Ordinances." v 4. The aforesaid provision empowers the Visitor to set aside any order or proceeding of the University on facts and as well as law, and there is no limitation on the power of the Visitor. This provision provides an efficacious alternative remedy to a person who is aggrieved by the decision of the University. A division Bench of this Court in Pramod Pathak v. Vice-Chancellor, B. H. 1985 U. P. L. B. E. C. 634 has held that Section 5 (7) of the Act provides an alternative remedy before the Visitor , who is aggrieved by the decision of the Executive Council. In our opinion the petitioner should approach the Visitor first before coming to this Court. 5. In our opinion the petitioner should approach the Visitor first before coming to this Court. 5. Learned Counsel for the petitioner has however, contended that the Visitor can set aside any order of the University only on the ground if the order/proceedings are not in conformity with the Act, the, Statutes or the Ordinances and as such, if any order of the University is challenged on the ground of violation of the principles of natural justice or mala fide or violation of fundamental rights, Visitor has no jurisdiction to interfere with those orders on these grounds. We are unable to agree with this submission of the learned counsel for the petitioner. 6. It is a condition precedent for valid exercise of statutory power that it must be exercised bona fide, fairly, reasonably and further it should be exercised so as not to be ultra vires. There is always a presumption that in a country governed by rule of law State does not intend that the statutory powers should be exercised unfairly or unjustly. Even in cases where the Statute is silent but there is a power to decide and determine to the prejudice of any person duty to act fairly and in accordance with the principles of natural justice is implied. Malafide or unfair exercise of power is not exercise power under the Statute. As such, if any authority including the University exercises its power under the Act, Ordinances or Statutes mala fide or unfairly, such exercise of power will not be in conformity with the Act, Statutes or the Ordinances and the Visitor will have full power to set aside such orders. 7. Statutory powers are exercised in public interest which may include in a given situation applications of Articles of Part-Ill of the Constitution of India relating to fundamental rights. It is implied condition of the exercise of any power conferred by law that such a power should be exercised in a manner so as to be not in conflict with the fundamental rights. If the statutory power is exercised in a manner so as to be violated of the fundamental rights, such exercise of power cannot be treated to be in conformity with the Statute. In view of this position Visitor can interfere even in cases where there is a plea about violation of fundamental rights. 8. If the statutory power is exercised in a manner so as to be violated of the fundamental rights, such exercise of power cannot be treated to be in conformity with the Statute. In view of this position Visitor can interfere even in cases where there is a plea about violation of fundamental rights. 8. Apart from power given to the Visitor by Section 5 of the Act, Section 10 of the Act makes all acts of the Executive Council subject to the control of the Visitor. Section 10 of the Act is quoted below : "10. Executive Council. - (I) The Executive Council shall, subject to the control of the Visitor, be the executive body of the University and shall have charge of the management and administration of the revenue and property of the University and the conduct of all administrative affairs of the University not otherwise provided for. (2) Subject to the provisions of this Act, the Executive Council shall exercise such other powers and perform such other duties as may be conferred or imposed on it by the Statutes or the Ordinances." 9. By virtue of Section 10 of the Act the Visitor has control over the activities of the Executive Council and in exercise of its controlling power it can revise the order of the Executive Council. 10. Learned counsel for the petitioner has contended that by virtue of the controlling power conferred on the Visitor by Section 10 of the Act, Visitor cannot revise the order of the Executive Council We cannot agree with this submission of the learned Counsel for the petitioner also. In State of Punjab v. Hari Krishna, AIR 1966 SC. 1081 some what similar provisions of Punjab Cinema [Regulation] Act, 19 52 came up for consideration before the Hon'ble Supreme Court. Section 5 of the Punjab Cinema (Regulation) Act, 1952 is quoted below "5. (1) The licensing authority shall not grant a licence under this Act unless it is satisfied that (a) the rules made under this Act have been complied with ; and (b) adequate precautions have been taken in the place in respect of which the licence is to be given, to provide for the safety of the persons attending exhibitions therein. (1) The licensing authority shall not grant a licence under this Act unless it is satisfied that (a) the rules made under this Act have been complied with ; and (b) adequate precautions have been taken in the place in respect of which the licence is to be given, to provide for the safety of the persons attending exhibitions therein. (2) Subject to the foregoing provisions of this section and to the control of the Government, the licensing authority may grant licences under this Act to such persons as it thinks fit, on such terms and conditions as it may determine. (3) Any person aggrieved by the decision of the licensing authority refusing to grant a licence under this Act may, within such time as may be prescribed, appeal to the Government or to such Officer as the Government may specify in this behalf and the Government or the officer, as the case may be, may make such order in the case as it or he thinks fit." The Supreme Court held that control of Government contemplated by Section 5 (2) may take the form of issuance of general directions and may also involve the exercise of revisional power after an order had been passed by the licensing authority. The relevant extract from para 14 of the judgment of the Hon'ble Supreme Court is quoted below : "The said control may, therefore, take the form of the issuance of general directions and instructions which are legitimate and reasonable for the purpose of the Act. The said control may also involve the exercise of revisional power after an order has been passed by the licensing authority. It is true that Section 5 (2) "in terms, does not refer to the revisional power of the Government; but having regard to the scheme of the section, it may not be unreasonable to hold that if the Government is satisfied that in a given case, licence has been granted unreasonably, or contrary to the provisions of Section 5(1), or contrary to the general instructions if legitimately issued by it, may suo motu exercise its power of control. In other words, in the context in which the control of the Government has been provided for by Section 5 (2) it would be permissible to hold that the said control can be exercised generally before applications for licences are granted, or particularly by correcting individual orders of they are found to be erroneous, but in any case, Government has to function either as an appellate authority or as a revisional authority, for that is the result of Section 5 (2) (3)." 11. As the Executive Council is the chief executive body of B. H. U. and takes decision of vital importance, which can affect the working of the University as well as the public at large, Legislature has thought it fit to make the acts of the Executive Council subject to the control of the Visitor so that the Visitor may interfere either suo motu or on representation of any other person. The power of the Visitor is co-extensive with that of the Executive Council. 12. In the present case, the petitioner is challenging the resolution of the Executive Council of the University on the ground that the order has been passed mala fide and in violation of the principles of natural justice. This will require investigation of facts and the representation to the Visitor is a better forum for redress of the grievance of the petitioner than the writ petition under Article 226 of the Constitution of India. 13. As the petitioner has an efficacious alternative remedy before the Visitor under the Act, we are not inclined to interfere in exercise of our extraordinary jurisdiction under Article 226 oi the Constitution of India. As such, we do not propose to go into the merits of the controversy between the parties and we dismiss the writ petition accordingly leaving it open to the petitioner to approach the Visitor for appropriate relief against the order/resolution of the Executive Council of the Banaras Hindu University. 14. The writ petition is accordingly dismissed.