High Court · 2025 on 24 Apr 2025

Judgment

1. This special appeal is directed against the judgment and order dated 12.3.2024, passed by the learned Single Judge in Writ A No. 15593 of 2019 whereby the order of compulsory retirement passed against the respondent-writ petitioner has been quashed. The consequential resolution passed by the Registrar has also been quashed with a further direction issued to reinstate the respondent-writ petitioner in service.

2. Shri Navin Sinha, learned Senior Advocate, appearing for Banaras Hindu University has assailed the judgment on limited

grounds. Shri Sinha has taken us through the records of appeal to point out that on conclusion of enquiry held against the respondent, only a censure entry was awarded. This decision was taken by the Executive Council in its meeting where the Vice Chancellor was also present. The decision of the Executive Council has subsequently been reviewed and, on the same set of charges and material, the Executive Council has subsequently resolved to compulsorily retire the respondent-writ petitioner. Learned Single Judge having noticed the applicable provisions of the Act and Statute, has come to the conclusion that Executive Council had no power of review and, therefore, the subsequent order of compulsory retirement is without jurisdiction. [2]

3. Sri Sinha, however, has invited our attention to the Act and Statutes of the University. Chapter IV contains Ordinances governing service conditions of teaching and non teaching employee. Section III contemplates penalties which can be imposed on employee. Penalties are segregated into minor penalties and major penalties. Censure is a minor penalty contained in clause containing minor penalties while compulsory retirement is a major punishment provided for in the Ordinance. Rule 37 of the Ordinance provides for review and is reproduced hereinafter : “37. Review Notwithstanding anything contained in these rules: (i) The Executive Council; or (ii) The Appellate Authority, within six months of the orders proposed to be reviewed may at any time either on its own motion or otherwise call for the records of any inquiry and review an order made under these rules from which an appeal is allowed but from which no appeal has been preferred or from which no appeal is allowed and may - (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order or imposed any penalty whether no penalty has been imposed; or (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; (d) pass such other order as it may deem fit; Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clause (v) to (ix) of rule 20 or enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in these clauses, no such penalty shall be imposed except after an enquiry in the manner laid down in rule 24 and after giving a reasonable opportunity to the employee concerned of showing cause against the penalty proposed on the evidence adduced during the inquiry. [3] An application or review shall be dealt with in the same manner as if it were an appeal under these rules.”

4. Shri Sinha submits that the attention of the learned Single Judge was apparently not invited to Rule 37, as a result of which the Court proceeded to hold that there was no power of review with the Executive Council. It is also submitted that the exercise of jurisdiction under Rule 37 is conditioned by the proviso, as per which the employee concerned is required to be given reasonable opportunity of making a representation against the penalty proposed to the employee concerned.

5. It is however admitted that in the facts of the case, no such opportunity has been given. Learned counsel for the appellant, therefore, submits that even if the judgment of learned Single Judge is to be sustained, even then an opportunity ought to be given to the appellant to proceed further in accordance with law.

6. Shri G.K. Singh, learned Senior Advocate, appearing on behalf of the respondent-writ petitioner states that the judgment of learned Single Judge suffers from no illegality inasmuch as the provision of review was never brought to the notice of the Court. Sri Singh further submits that there exists no material on record, on the strength of which any possible decision could be taken to review the earlier punishment imposed upon the writ petitioner. It is further submitted that neither the points of disagreement with the earlier punishment have been specified nor an opportunity of hearing has been given to the charged employee and since the reviewing authority also has not complied with the proviso to Rule 37 of the Ordinance, therefore, order impugned is otherwise bad.

7. Sri Singh has also made attempt to contend that though Rule 37 provides for review but going by the statutory scheme, it is in fact a [4] power of revision and not review. Attention of the Court have been invited to an Amendment made in 1985 to Rule 32 of the Ordinance. The unamended Rule 32 (ii) read as under : “an order imposing any of the penalties specified in rule 20 whether by the disciplinary authority or by any appellate or reviewing authority”

8. By virtue of the amendment introduced on 15.7.1985 by way of notification, clause (ii) to Rule 32 has been amended as under : “ an order imposing any of the penalties specified in rule 20 whether by the Disciplinary Authority or by any Appellate or Revising authority”

9. On the strength of the above amendment as also the other provisions placed on record, the Senior Advocate for the writ petitioner submits that the power of review is not available to the statutory University and Rule 37 ought to be interpreted accordingly.

10. We have heard Shri Navin Sinha and Shri Ajit Kumar Singh, learned Senior Advocates assisted by Shri Hem Pratap Singh, learned counsel for the appellants and Shri G.K. Singh, learned Senior Advocate assisted by Shri Manoj Kumar Srivastava, learned counsel on behalf of respondent, and perused the material on record.

11. It is understood that disciplinary action was initiated against the writ petitioner on certain charges of sexual harassment of female students and enquiry was conducted in the matter and ultimately the Executive Council in its meeting held on 7.6.2019 imposed punishment of censure entry. It is thereafter that the Executive Council in its subsequent meeting held on 27.9.2019 reviewed its earlier order and imposed the major penalty of compulsory retirement. It is admitted on record that before reviewing its decision, the Executive Council neither intimated reasons which compelled the [5] Executive Council to exercise the power of review nor any opportunity of hearing was given to the writ petitioner. It is for this reason that the subsequent order of compulsory retirement has been interfered by the learned Single Judge.

12. The moot question that requires determination in the present appeal is as to whether University has any power of review, as a result of which the previous decision of awarding censure entry could be reviewed so as to impose punishment of compulsory retirement. On this aspect, we find that Rule 37 contains a provision for review. Rule 37 has already be extracted above which would reveal that the Executive Council or the appellate authority within a period of 6 months of the order proposed to be reviewed either on its own motion or otherwise call for the record of any enquiry and review the order made under these Rules. On conclusion of such proceedings, the authority concerned can either confirm its decision; modify it or set aside the order. Similarly, the reviewing authority also has the power to confirm, reduce, enhance or set aside the penalty imposed by the order or impose any penalty where no such penalty has been imposed.

13. The only submission on which such power is doubted by the Senior Advocate for the respondent-writ petitioner is that the language employed in Rule 37 is suggestive of such power being in the nature of revision and not review. For such purposes, reliance is placed upon Rule 32 (ii) to submit that except for the use of expression revising authority by way of amendment introduced in Rule 32, there is no other provision of revision. It is therefore submitted that this amendment introduced in Rule 32 is suggestive of the fact that the power contemplated under Rule 37 of Ordinance in fact is a revisional power. [6]

14. The submission of Sri G.K. Singh does not appeal to the Court inasmuch as the Ordinance categorically provides for the power of review in the Executive Council or the appellate authority. The manner in which such power is to be exercised is also stipulated.

15. The proviso also contains necessary safeguards inasmuch as the reviewing authority at the time of exercising such jurisdiction is required to provide for an opportunity of hearing to the employee concerned.

16. The second proviso to Rule 37 stipulates that application for review is to be dealt with in the same manner as if it were an appeal under these Rules. Rule 37, taken cumulatively, clearly indicates the intent of conferring jurisdiction of review upon the Executive Council and the appellate authority. In what manner such jurisdiction is to be exercised is also specified. Merely because an amendment is introduced in 1985 whereby reviewing authority has been substituted by revising authority would not lead to an inference that the power of review is actually a power of revision. If we accept the submission of Sri G.K. Singh, it would amount to adding words into the statute which is not within the scope of this Court. Even otherwise, we have examined the Ordinances and we do not find any necessary or implied intendment in the scheme suggesting that power of review is excluded.

17. In such circumstances, we are inclined to hold that the Executive Council has power to review its own decision. To this extent, we interfere with the conclusion drawn by the learned Single Judge and modify the judgment of the learned Single Judge accordingly. [7]

18. Coming to the merits of the matter, though we have held that the Executive Council has the power for review but we cannot justify the decision of the Executive Council in reviewing its earlier decision in the manner it is done for the simple reason that neither any reasons have been specified for exercise of such jurisdiction nor the opportunity, mandatorily required to be given to the employee by virtue of proviso, has been afforded to the writ petitioner. In such circumstances the limited extent to which we intend to interfere in this appeal is to grant liberty to the appellant to proceed in the matter, afresh.

19. We modify the judgment of the learned Single Judge only to the extent that we, while agreeing with the judgment of the learned Single Judge in setting aside the subsequent resolution of the Executive Council dated 27.9.2019 as well as the consequential resolution of the Registrar dated 21.10.2019, deem it appropriate to grant opportunity to the University to proceed afresh in accordance with law.

20. It goes without saying that the opportunity contemplated in the proviso would be extended to the writ petitioner as and when the University proposes to exercise such power. Whether or not on facts necessary conditions are satisfied for exercising review jurisdiction is also left open for consideration at the appropriate stage.

21. In the facts and circumstances of the present case, we also provide that the University shall reinstate the petitioner within two weeks from today and pay him his current salary. It shall be open for the University to take work or not to take work from the writ petitioner.

22. So far as the arrears of salary is concerned, the same shall remain subject to a fresh decision to be taken by the Universityfor [8] which opportunity is given by us. It goes without saying that if University opts not to exercise such power, the writ petitioner would be entitled to payment of arrears of salary or else the arrears of salary would abide by the fresh decision to be taken in review.

23. This special appeal is, accordingly, disposed of. Order Date :- 24.4.2025 DKS DEEPAK KUMAR SRIVASTWA High Court of Judicature at Allahabad