Kashmir University v. Mohd. Yasin

169 A B ### c D E F G H _November_ 5, 1973 [V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.] _Jammu_ _and_ _Kashmir_ _University_ _Ordinance,_ 1969 _and_ _lammu_ _and_ _[1]_ _Ka.ihmlr_ _Universily Act, 1969-Section 52-Automatic_ _tertnin'ation_ _under_ _iec1lo11_ _of_ _1er·_ _vices_ _of_ _Lecturer_ emP,loye~ _on_ _contract basis-No_ _reemploJ.ment_ _IJ!_ _provided_ _by_ _statute-More_ _cont1nuatton_ _on_ _the_ _expiry_ _of statutory_ _pzriod_ _does_ _not_ _Justify_ _inference_ _of_ _implied_ _engagement._ _Jammu_ _and_ _Kashmi'r_ _University_ _Act, 1965-Enquiry_ _fnJo_ _n1isconduc1_ _and._ _report_ _under_ _the_ 1965 _Act-No validation_ o.~ _continuation of enquiry_ _co,nmenced_ _i111der_ _the_ _1965_ _Act_ _it1_ _the_ 1969 _Act-Show_ _caus:1_ _notfce_ _and_ _termination_ _service_ _basecf_ _on_ _the_ _Enquiry-Report_ _under_ _the_ 1965 _Act- .validity,_ The respondent joined the Jttmmu anU Kashmir University in 19~3 as lecturer on contract basis. He was later promoted as professor. His appoint· mo:nt as profe&sor was also on contract ba'iis and by aareement be was bound . by the stz..,tutes and regulations from time to time in force in the University, While extendina: his period of probation as Professor the Ce·ntral Council of the University rP:solved that the respondent b~ charge-'iheeted for certain alleaed misconduct. An Enquiry was he~d under the Jammu and Kashmir Universi~ Act, 1965 arJ1 a report was submitted holding the respondent guilty. On the ·day the enquiry officer submitted ~he report, the Jan1mu and Kashmir University Ordinance 1969 was promulgated. Section 52 of the Ordinance provid~d that teachers employed on contract basis "unless otherwise ordered by the Chancellor after consulting the Pro-Chancellor shall cease to hold such posts or to discharge su'ch duties after 6() days from the commencement of this Ordinance or the Act. as the case· may be." No such order was issued by the Chancellor extending t.he respond:nts employment on the expiration of the period. On the other hand. the Vice·Chancellor. allowed him to function as P.rofessor and his pro· bation was again extended for a year by the Vice-Chancellor'· under s. 13(4) of the Ordinance (which had already been replaced on November 16, 1969· by the Jammll and Kashmir University Act, 1969}. The Vice-Chancellor also dlrected the release of the salary of the respondent and requested him to serve on the academic council as an ex-offi:io member. Based on the enquiry report the Vice-Chancellor issued a show cause notice to which the respondent submitted his explanation. The Universitv Council decided to terminate the services of the respondent. JD a Writ pet:ition filed by the respc;mdent the High court cHrected re-instatement. The Hi.1Z.h Court took the view that the facts. nnd drcumstanc~111 of the case clearly enabled the· spelline: out of a fresh app.oint· ment of the respondent as ProfeSsor' by an emplied contract. The High Court was also of the opinion that the enquiry directed· under the 1965 Act lapsed when the 1969 Ordinance came into force and could npt furnish the basis for punitive action agair.iSt the respondent and therefore the order of dismissal based en the report of the En9uiry Officer was bad in law. HELD : that the High 'eoUrt•s order of reins~atement ha-d to be quashed. \Vhile the respoJ1dent had no right to contiilue in the University the terntination of his services was invalid. (i) Under the 1969 Ordinance and the"'Sub!'equent Act which replaced it the only body competent to appoin(a professor. like the respondent, is the Univer. sity Council and even the Council shall make such aopointments onlv on the recommendation of the Selection Committee created by sec~ion 36. There is no case that, the Selection Committee even considered or recon1mended the respondent for appointment and there is no sue:e:estion that the UniversitY Council appointed the respondent a1i professor. It follows that the on.lY. sta!utory body UNIVERSITY OF KASHMIR AND OTHERS _v._ MOHD. YASIN AND OTHERS 170 SUPREME COURT REPORTS [ 1974] 2 s.c.R. empowered .in this behalf has not appointed the respondent to the post claimed by him. Therefore the continuance of the respondent on the expiration of the statutory two months' period canr:ot be Je2itim1ted by law. The cir:umstance tha.t the respondent functioned in the University does not vest in him .the legal sta~us of a validly appoir~ted employee with all the protection. that the Act and the relevant statutes give to such a person. Thus no case of statutorv ter· mination is called ·for. th; basis of st:itutory employment being absent. [175!-J 'When a statute creates a bodl:;, and vests it with authority and circumscribes the powers by specifving limitation the doctrine of implied eneal?ement _le_ _hors_ the provisions and powers under the Ad would be 'Subversive· Or the statutory scheme regardine anooiµtment of officers and cannot be countenanced bv the Court. If a Vice.Chancellor by a<lmir.istrative drift allows such employment it cannot be validated bv anv theorv of _factun1_ _valet._ f176~1 (ii) When there was no provision in the 1969 Act which would continue or validate the enquiry commenced against the respondent by the Jammu and Kashmir University created hv the 1965 Act. the Enquirv report r~ns to the ground vis·a.-vi.~ the respondent. The fact that he responded to a show cause notice cannot clothe the enquiry witft Je~alitv and the reoort j-; impern1i5sible material to injure the respondent with a punitive termination. The respondent would be considerably damnificd in his standin2 and reoutHion bv the order of the lTniversitv. The termination of his service: therefore has tO be declared illegal. [!76GJ C!VJL APPELLATE JURISDICTION: Civil Appeal No. 1386 of 1972. Fr0m the Judgment and order dated the 26th October, 1971 of the Jammu and Kashmir High Court at Srinagar in Writ Petition No. 36 of 1970. _F._ _S._ _Nariman,_ _Additional Solicitor_ _General_ _of India,_ _0._ C. _Mathur_ and _P._ C. _/Jlwrtari,_ for the appellant. _T'._ _R._ _B/111si11,_ _R._ _L._ _Kohli_ and _Ramesh Kohli._ for respondent No. 1 The Judgment of the Court was delivered by KRISHNA !YER, J.-The University of Kashmir, the appellant, with a blurred sense of legality, issued a ukase by resolution of its Council, tern1innting the s::rvices of its Professor, the appellee. insuftit:iently aware of the kaleidoscopic legislative changes and crucial statutory consequences on the one hand and curiously indifferent to its own embarrassingly ambivalent dealings seemingly legitimising the permanent f.:tatus of the Profe~sor. This decision virtually dismissing lhe appeEcc was,.uccessfu!l,v challei1ged as void in the High, Court, but th~ arpellant lJniYcrsit:y has come up in appeal. with a certificate of fitness seekinr to susrnin the validity of its action. At the first blush. the law of n1aster and servant may apply to the present foct·situati0n bm the ft<1tu10:-y status of the employer substantially transforms Ihe chsrc::ctcr of the maste:, the con~equences of its _ultra vlres_ ccts ns well as amenability to types of relief like re-instatement and the applicability or writ remedies, alien to the legal chemistry of breaches of contract. However, in the light of the factual-cum-legal conclusions which appeal to m thes·o thorny jurisprudential issues of deeper import in a socio-economic and cultural context where the State undertakes dynamic activiHes affecting citizens' rights an<l operates through A B ## _c_ D E F G H **A** **B** ### **c** **D** **E** **F** **G** **H** KASHMIR UNIV. _v._ MOHD. YASIN _(Krishna_ _Tyer,_ **l.)** 171 corporate and other effective instrumentalities may not fall for cflrcct decision. Enough unto the day is the evil thereof . . A chronological narration of the principal facts and events and **legislative** **shifts** **and** **their** **implications** **must** **precede** **consideration.** **of** the legal contentions put forward by either side. The Jammu and Kashmir UniversiUy Act, 2005 (Samvat Year) created the University of Jammu and Kashmir. Several years later the. present respondent joined the University as a iecturer on contract baSis, the law that governed his servic·~s being the provisions of that Act and the statutes framed thereunder. Subsequently, the Jammu and 'Kashmir University Ac;t, 1965, was passed which, while repealing the previous Act, P"served and continued for the transitional period the rules and regulations and services of teachers and officers of the University (s. 52). Primarily, the 1965 Act imparted embryonic shape to the Jammu University and the Kashmir University by the creation of two Divisions. _(_ 1 ) J ammu Division, and ( 2) Kashmir Di visiou. Anyway, the respondent who had .ioined in 1963 was ap· .Pointed as Reader in September 1965, a few months after the 1965 Act came into force. A couple of years later the respondent register· ed an advance in his career and became Professor in the PostGraduate Department of the University in the Kashmir Division on terms and conditions contained in Jetter dated Januarv 8, 1968. While he was pur 9n probation for one year he was informed that im· mediately after his appointment he would have to enter into an agreement with the University in the form forwarded to him. This agreement bound the respondent to the statutes and regulations from time to· time in force in the University. It is significant to note,· as the High Court has pointed out in its judgment, that "the case of hoth the parties, however, is that the appointment of the petitioner as Pro· **fesscr** **\Vas** **on** **contract** **basis".** **The** **one-year** **period** **of** **probation** expired on December 14. 1968, but the Vice-Chancel:or extended it for one more year by order dated November 11, 1968. This exten· sion was confirmed by the meeting of the Central Council of the un;versity at its meeting dated June 26, 1969. But at the seme meeting it was resolved by the Central Council that the respondent be cha.rge-sheeted for certain alleged misconduct. An enquiry was held by an enquiry officer· appointed in this behalf, Shri J. N. Bhan, who submitted his report on September 5. 1969 holding the respo'1dcnt guilty substantially. Bv accident it happens that on the same date, namely, September 5, 1969, the Jammu and Kashmir .ui;ivmity Ordina:ice. 1969. was promul.gated by the Governor estabh~hm~ two separate universities. one for· J ammu and the other for Kashmtr. How· **ever,** **by** **S·** **52** **t)lereof, the** **rules** **and** **regulations** **a!1d. services of.** ~m· ployees werz continued. And then followed a s1gmficant prov1s1on which laid down that within 60 days from the commencement o! **the** Ordinance the services of teachers employed on contract basis were to cease unless otherwise ordered by tiie Chancellor. No such order was issued bv the Chanceltor extending the respondent's employment. However oblivious or heedless of the statutory cessation of the res pondent'~ services, he was all?wed to function a,s Professor and his probation was agam extended for a year by the V1ce·Chanceltor under 172 SuPREME COURT REPORTS ( 1974 J 2 S.C.R. s. 13 ( 4) of the Ordinance (which had alread;y been rep)aced on Nov ember 10, 1969 by the Jammu and Kashmir Universities Act 1969) More inc.?ngruous with the appellant's present stand is the dircctio~ by the "1ce-Cn~ncellor to release the salary of the respondent and the request to him to serve on the Academic Council as an ex-officio mc1!Jber, being Prof~ssor ~nd H_ead of the Department of History.. Whlle, thus, on the one Side qmet flowed the stream of service as professor, on the other turbid eddies of threat to terminate surfaced up. For, based on the enquiry report the Vice-Chancellor issued a 'show-cause' notice on Dec·:mber 22, 1969, which elicited the respondent's explanation on January 31, 1970. Together, all the materials were considered by the University Council at its meeting dated July 7, 1970, where th-: decision was taken to ·remove him paying one month's salary. Thereafter, of course, the present litigation started. The principal questions canvassed before us turn on the correct· ncss of the views taken by the High Court on (a) the respoi1dent's' right to continue in service even after the statutory explanation thereof, and (b) the validity of the reliance on the enquiry report in the termination order nnd the breach of statutony conditions subject to which alone the power of terminating the relationship could be exercised by the University Council. In the opinion of the High Court, the facts and circumstances of the case clearly enabled the spelling out of a fresh appointment of the respondent as Professor and Head of the Department of History of the new University of Kashmir by an im· plied contract. Once this position is reached, it follows logically that !he termination has to be in terms of the statutory regulations. On this aspect of the case the Court took the view that the enquiry Jirect·cd under the 1965 Act lapsed when the 1969. Ordinance and the Act came into force, and could not furnish the basis for punitive action against the respondent. The irresistible conclusion the Court therefore reached was that the order of dismissal pa~sed by the Universi!Y Council being based on the report of the Enqmry Officer was bad m law. The Court directed re-instatement by a writ of _mandamus._ The learned Additional Solicitor General, appearing for the appel· !ant University, built an argument the corner-stone o! which was that there was a statutory cessation of the contractual service of the respon· dent bv operation of s. 52(4) of the Ordinance and the Act of 1969. The statutes under the Act of 1965 contained a provision which ran thus : **''Procedure--conditions** **for** **appointment** **of University** Teachers. STATUTES 1. .... **A** **B** ### c **D** **E** F G 2. Every salaried teacher of the University shall have to execute a written contract with the University. The conditions of service of teachers appointed by the University shall be those embodied in the Agreement of service an- H nexed hereto or, on Agreement substentially to like effect, and every teacher shali execute the Agreement before he **enters upon his duties** **or** **as** **soon** **as** **possible thereafter."** A. B ### c D E KASHMIR UNIV. _v._ MOHD. YASIN _(Krishna_ _Iyer,_ /.) 1 _'73_ It is also common case that respondent's employment was on a contractual basis. By s. 51 of the 1969 Ordinance "all the statutes and regulations made under the Jammu and Kashmir University Act of 1965 and in force immediately before the commencement of this Ordinance shall so ·far as may be consistent with the provisions of this Ordinance continue to be in force in each University after the commencement of this Ordinance." Thus we reach the position that, on a combirted. reading of Statute 2 framed under the 1965 Act (already extracted above) and s. 51 of the Ordinance of 1969, which is in identical terms with s. 59 of the Act which replaced the Ordinance, the respondent was an employee of the University serving under a contract. In fact neither party disputes this position. Our attention must now turn to a crucial provision in the 1969 Ordinance which is also reproduced in the ensuing Act. Section 52 thereof runs thus : "52. Continuance of service of the existing employees and their allocation :-Notwithstanding anything contained in this Ordinance or any Statute or Regulation made thereunder or in any other law for the time being in force : (I) all employees of the University of Jammu and Kash mir constituted under 'the Jamirtu & Kashmir University Act, 1965 (other than those serving on contract or on deputation in the University or those serving in the Publication Bureau of the Uni· versity) who, immediately before the the commencement of this Ordinance, were holding or discharging the duties of any post or office in connection wjth the affairs Qf the .s.aid .lJnivo:rsity shall, subject ##### ta .the prli'yisiol\5 of sub-.sectio(l (2), continue in (2) serv\ce .on the same terms. and conditions as regulated their service before. such commencement; the Chancellor may in consultation ·with the· Pro Chancellor by order allocate the. employees of the University of Jammu '. and Kashmir (other than those serving on contract or deputation in the University or those serving in the Publication Division of the University) between the University of Kashmir and the University· of Jammu cdnstituted under this Ordinance in such manner as he mav· consider necessary and every such allocation shall be deemed to be an appointment, transfer . . . . as the case may be to the post or office by the competent authority under this Ordinance : F .G Provided that in making such allocations the conditions of service of - employment of such empl6yees shall not be varied to their disadvantage : #### H (3) "" ( 4) all persons who immediately befo~e the C?mmen~e­ ment of this Ordinance were holdmg or d1schargmg 174 SUPREME COURT REPORTS [ 1974) 2 S.C.R. the duties of any post or office in connection with the affairs of the University of J ammu and Kashmir **on** **contract basis** **or** **by** **virtue** **of** **thir** **occupation** **to** such posts or offices from other services in the State, unless otherwise ordered by the Chancellor after consulting the Pro-Chancellor, shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Ordinance and all such contracts with or deputations to the Universitv of Jammu and Kashmir shall stand terminated wiih effect from the expiry of the said period of 60 **days."** If we may condense the effect of this provision to the extent relevant to the present case, it means that teachers employed on contract basis "unless otherwise ordered by the Chancellor after cbnsultirtg the Pro-Chancellor shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Ordinance" or the Act, as the case may be. To add emphasis, as it were, to the cessation of such tenure the further part of the section re-iterates that "all such contracts with .... the University of Jammu and Kashmir shall stand terminated with effect from the expiry of the said period of 60 days." Thus, by the inexorable operation of the calendar, on November 5, 1969, the respondent made a statutory exit from the employment of the Kashmir University. This much even the respondent has reconciled himself to, and the High Court has accepted. To retrieve the situation thereafter, the respondent had recourse to a plea which found favour with the learned Judges, that the actings and dealings of the higher functionaries of the University vis-a-vis the respondent eloquently testified to the claim of implied employment of the respondent subsequent to the statutory cessation. It is true that _de_ _facto_ the respondent functioned as Professor. drew salary as such, became a member of the Academic Council in that capacity and was treated as on extended probation by the Vice Chancellor. In view of these habiliments of professoriate the High Court assumed the premise that the respondent was "admittedly in the employment of the University of Kashmir on the relevant date", and proc~ded to essay the next problem which it posed in these words : "The main question in this cause is whether the employment of the petitioner was validly terminated under the impugned resolution." We are dealing with a statutory body, the University, and its powers and duties and the canalisation thereof. The functionaries under it and the contours of their authority are delineated by the Act. If any body created by a statute went beyond the area of its powers, the act was _ultra vires_ and of no effect. Ordinance 10 of 1969 and the subsequent Act which replaced it have vested in the A .II ### c **D** E F **G** H _-I_ **B** ### c **D** E F G **H** KAS!JMIR UNIV. _v._ MOHD. YASIN _(Krishna_ [~er, J.) 175 University Council certain powers regarding the appointment of the teaching staff. Section 22 reads : "22. Powers and functions of the University Council :The University Council of a University shall be the supreme authority of the University and shall have the following powers, namely : (f) save as otherwise provided in this Ordinance; to appoint officers of. the status of Joint Registrar, Deputy Librarian and above and teachers of the status of Readers and above and to define their duties. Provided that no officer or teacher shall be appointed by a University Council until provision has been made for his salary i11 the approved budget of the University concerned : Provided further that all appointments (Permanent or temporary) to the posts of Officers or teachers referred to in this section shall be made by the University Council on the recommendation of the Selection Committee constituted for the purpose in accordance with the provisions of Section 36 of this Ordinance, and on such terms and conditions as may be pre.scribed by tbe Statutes : Provided also that the Vice-Chancellor may make ap**pointments** **of** **teachers** **referred** **to** **in** **this** **Section** **as** **a tc111po-** **rary** **measure** **for** **a period** **not** **exceeding** **six** **1nonths** **to** **carry** on the work· and if the recommendations of the Selection Committee are not received within a period of six months, the Vice Chancellor may extend the appointment, if any made by him, for the duration of the academic session with the approval of the University Council; ... " Thus, the only bcdy competent to appoint a professor, like the respondent, is the University Council, and even the Council shall make such appointments only on the recommendation of the Selection Committee created by s. 36. There is no case that the Selection Committee ever considered or recommended the respondent for appointment and there is no suggestion that the University CounCJl appointed the respondent as professor. It follows that the only statutory authority empowered in this behalf has not appointed the respondent to the post claimed by him. There is an interim power vested in the Vice-Chancellor hedged in with limitations, as is· contained in the third proviso to s. 22(1). · He may make appointments of teachers as a temporary measure for periods not exceeding six months to carry on the work, and if the Selection Committee's re· commendation is not received within that time he may extend the appointment for the duration of the -academic session with ·the approval of the University Council. There has been no exercise of the narrow power of the Vice-Chancellor under this proviso and the conclusion is ·irresistible that the continuance of the respondent on the expiration of the statutory two months' period cannot be legitimated by law. Of course, he remained to teach and. was paid for 176 SUPREME COURT REPORTS [ 1974] 2 s.c.a. his work. He did many other things which a legally appointed professor would do, with the full knowledge and even at the request of the Vice-Chancellor. May-be, he, the Vice-Chancellor and others in the University were perhaps not keeping themselves abreast of the law. But the fatal fact remains that the Chancellor did not extend the services of the respondent as contemplated bys. 52(4), and this failure finishes the plea of continuance in office of the professor. We are not concerned with tbe administrative fall-out from this finding although the salary of the teacher app;ars to have been sanctioned by the Vice-Chancellor-a piece of coaduct which may b, understandable en equitable grounds. The circumstance that the rec.pendent functioned in the University does not vest in him the legal status of a validly appointed employee with al\ the protection 'that tho Act and the relevant statutes give to such a person. In this view of the fact**situation,** **without** **more,** **the** **respondent's** **work** **on** **the** **University** campus can be brought to a close. No case of statutory termination of service is called for, the basis of statutory employment being absen~. The _ad_ _hoc_ arrangement by which he remained to teach did not ac· quire legal validity merely bccauso the Vice-Chanoelor went thro:Ugh the irregular exercises of extending his probation. etc. We have to hold that the curtain fell on the office held by the respondent when, at the end of 60 days after the Act, the sands of time ran out. The ground urged successfully, as it were, before the High Court, **of** **an** **implied** **engagement** **cannot,** **in** **our** **view,** **be** **sustained.** **When** a s\atute creates a body and vests it with authority and circumscribes **its** **powers·** **by** **specifying** **li1nitations,** **the** **doctrine** **of** **implied** **engage-** ment _de_ _!tors_ the provisions and powers under the Act would be sub· versive of the statutory scheme regarding appointments of officers and cannot be countenanced bv the Court. · P6Wer ·in this case has been vested in the Universi!J Council only and the manner _of. its exercise has been carefully regulated. Therefore, the appointment of the respondent could be made only by the · Cou·nci!· and only in the mode r.rescribed by the statute. If a- Vice-Chancellor by administrative dnft allows such emplpyment it cannot be validated on any theory **of** _**fact111n**_ _**vafet.**_ _**'v'le**_ **cannot** **countenance** **the** **alleged** **continuance** **of** **the** **respondent** **in** **the** **University** **can1pus** **as** **tantamount** **to** **regular** **service** **under** **the** **Universitv** **\Vith** **the** **sanction** **of** **la\v.** **In** **short,** **the** respondent has no presentable case l\gainst the direction to quit. **Even** **so.** **there** **are** **certain** **disquieting** **features** **in** **this** **case.** **The** Additional Solicitor-General fairly concedes that there was no pro· vision in the 1969 Act which would continue or validate the enquiry - commenced against the respondent by Jammu and Kashmir Univer· sity created by the 1965 Act. If so, the enquiry report falls to the ground vis-a-vis the respondent. The fact that he responded to . a show-cause notice cannot clothe the enquiry with legality and ·the **report** **is** **impermissible** **material** _**to**_ **injure** **the** **respondent** **with** **a** **puni-** tive termination. The reliance on the enquiry report by the University to take a hostile decision on July 7. 1970 is illegal. The Uni-· versity Council could not act to his prejudice on the strength of a **damaging** **report** **which** **had** **no** **force.** **\Ve** **are.** **therefore,** **clear** **in** **our** **ininds** **that** **the** **·termination** **of** **the** **se-rvices** **of** **the** **respondent** **was** stricken by the vice of statutory violation. The respondent is per **A** **B** ### c **D** E F G **H** # A B ### c KASHMIR UNIV. _v._ MOHD. YASIN _(Krishna Iyer,_ _J.)_ 177 fectly tight in contending that he has been considerably damuified in his standing and reputation by this order of the University. We are, therefore, inclined to the view that while the respondent has no tight to continue in the University, the termination of his services, as per annexure A, is invalid. It is no use the University contending that its order is innocuous. It is clear that its annexure A carries a stigma with it since it expresses "the unanimous conclusion that the .... charges have been established against him" .and the tennination itself is founded on the guilt so made out: We, therefore declare that Annexure A is void but further _hold that the resgondent has no right to continue in service and the direction to him that he should leave his post as Professor and Head of the Post-Graduate History Department is good. The High Court's order of re-instatement is quashed. There is much in the circumstances of the case to show that both sides have been indifferent to the provisions of the law which changed from time to time and both sides have acted under misapprehensions, which warrant our direction that parties will bear their own costs throughout. The appeal is allowed subject to the above order as to costs, K.B.N. _Appeal allowed._ 13-IA47Sup. C. I./74