# Shail Kumar Chaube v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 434
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-12
- **Case number:** Writ A No. 15593 of 2019
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shail-kumar-chaube-v-state-of-u-p-ors-54584
- **Pages:** 19

## Headnote

A. Service Law - Banaras Hindu University
Act,
1915
-
Central
Civil
Services
(Classification, Control and Appeal) Rules,
1965 - Rules 11, 14 & 15 - Disciplinary
proceeding - Compulsory retirement -
Working as a Professor in Banaras Hindu
University - Charge of making vulgar
remarks U.P.on the students was leveled -
Earlier, the penalty of 'censure' was
imposed by Executive Council, but later on
U.P.on reference of Vice Chancellor, major
penalty of 'compulsory retirement' was
imposed - Review power of disciplinary
authority was challenged - Held, the
disciplinary authority in the matter of
imposition
of
punishment
after
due
enquiry held, in the absence of provision
to review its decision and to change
penalty from minor to major cannot be
justified and deserves to be quashed -
Original Act, 1915 did not provide for
compulsory
retirement
by
way
of
punishment - Since there is no power
available to review a penalty imposed, it
was beyond competence of Executive
Council of the University to have resisted
its penalty. (Para 6, 8, 21 and 41)

B. Service Law - Banaras Hindu University
Act, 1915 - Statute 31 (d) -CCS Rules,
1965
-
Disciplinary
proceeding
-
Compulsory retirement - No show cause
notice was issued - Effect - Held,
whenever the University proposes to
4 All. Shail Kumar Chaube Vs. State of U.P. & Ors.
435
remove a person from employment on the
ground of misconduct, he would be
entitled to opportunity of show cause in
respect to the decision taken - The
Executive Council has not even issued a
notice much less a show cause as required
under Statute 31 (d) or under the CCS
Rules
before
firing
him
by
way
of
compulsory retirement from the University
- Resolution adopted by the Executive
Council now impugned in the present writ
petition is liable to be quashed on this
ground alone. (Para 34 and 37)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,983 of 63,964. This is a partial read: ask again with offset=39983 for what follows._

434 INDIAN LAW REPORTS ALLAHABAD SERIES
that the departmental proceedings against
the appellant Mata Deen Garg could
continue"

8.

This
judgment
has
been
subsequently followed by two Co-ordinate
Benches of this Court in the case of
Ravindra
Singh
Rathor
vs.
District
Inspector of Schools;2003 Lawsuit (All)
950 and Bal Krishna Pandey vs. State of
U.P. and others passed in Writ-A No.
20488 of 2007 decided on 30th April,
2007.

9. Beside the above learned Standing
Counsel has not been able to show any
government order or any law that entitles
the State to withhold and deny pension to a
retired employee by embarking upon an
enquiry into the qualification of a retired
teacher at the time of his or her entry
intoservice decades ago.

10. In view of the above, the writ
petition succeeds and is allowed.

11. The order passed by Deputy
Director of Education dated 05.05.2022 and
03.09.2022 as well as the consequential
order dated 13th September, 2022 passed
by District Inspector of Schools, are,
accordingly,
hereby
quashed.
The
respondents are directed to clear all post
retiral dues of the petitioner within a period
of one month of production of certified
copy
of
this
order,
failing
which
respondents shall have to pay interest @
8% for the period payment is delayed
beyond 30 days as prescribed above.
----------
(2024) 4 ILRA 434
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2024

BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 15593 of 2019

Shail Kumar Chaube ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Udai Chandani, Sri G.K. Singh (Sr.
Advocate)

Counsel for the Respondents:
Sri Krishna Raj Singh Jadaun, Sri Ritvik
Upadhya, Sri Vikram D. Chauhan, Sri V.K.
Upadhya (Sr. Advocate)

A. Service Law - Banaras Hindu University
Act,
1915
-
Central
Civil
Services
(Classification, Control and Appeal) Rules,
1965 - Rules 11, 14 & 15 - Disciplinary
proceeding - Compulsory retirement -
Working as a Professor in Banaras Hindu
University - Charge of making vulgar
remarks U.P.on the students was leveled -
Earlier, the penalty of 'censure' was
imposed by Executive Council, but later on
U.P.on reference of Vice Chancellor, major
penalty of 'compulsory retirement' was
imposed - Review power of disciplinary
authority was challenged - Held, the
disciplinary authority in the matter of
imposition
of
punishment
after
due
enquiry held, in the absence of provision
to review its decision and to change
penalty from minor to major cannot be
justified and deserves to be quashed -
Original Act, 1915 did not provide for
compulsory
retirement
by
way
of
punishment - Since there is no power
available to review a penalty imposed, it
was beyond competence of Executive
Council of the University to have resisted
its penalty. (Para 6, 8, 21 and 41)

B. Service Law - Banaras Hindu University
Act, 1915 - Statute 31 (d) -CCS Rules,
1965
-
Disciplinary
proceeding
-
Compulsory retirement - No show cause
notice was issued - Effect - Held,
whenever the University proposes to
4 All. Shail Kumar Chaube Vs. State of U.P. & Ors.
435
remove a person from employment on the
ground of misconduct, he would be
entitled to opportunity of show cause in
respect to the decision taken - The
Executive Council has not even issued a
notice much less a show cause as required
under Statute 31 (d) or under the CCS
Rules
before
firing
him
by
way
of
compulsory retirement from the University
- Resolution adopted by the Executive
Council now impugned in the present writ
petition is liable to be quashed on this
ground alone. (Para 34 and 37)

Writ petition allowed. (E-1)

List of Cases cited:

1. Gajadhar Prasad Mishra Vs Vice Chancellor,
University of Allahabad & ors.; 1966 All LJ 324
(FB) :1965 SCC Online All 345

2. Neelima Mishra Vs Harindar Kaur Paintal;
1990 (2) SCC 746

3. Roop Singh Negi Vs P.N.B.& ors.; 2009 (2)
SCC 570

4. Apparel Export Promotion Council Vs A.K.
Chopra; (1999) 1 SCC 759

5. Calcutta Dock Labour Board Vs Jafar Immam;
1965 : 1965 (2) LLJ 112 (SC)

6. M.V. Bijlani Vs U.O.I.; (2006) 5 SCC 88

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri G.K. Singh, learned
Senior Advocate assisted by Sri Udai
Chandani, learned counsel for the petitioner
and Sri V.K. Upadhya, learned Senior
Advocate assisted by Sri Ritvik Upadhya,
learned counsel
for the RespondentUniversity.

2. At the very outset, learned counsel
for the petitioner submits that petitioner is
confining his writ petition only to the
resolution
adopted by
the
Executive
Council
dated
27.09.2019
and
the
consequential order of Registrar dated
21.10.2019.

3. Petitioner while working as a
professor in the Department of Zoology
Institute
of
Science,
Banaras
Hindu
University
was
awarded
with
the
punishment in the nature of compulsory
retirement from service vide resolution
adopted by the Executive Council in its
meeting held on 27.09.2019 (Item No.19)
and the consequential order passed by
Registrar
of
the
University
dated
21.10.2019. It is this resolution of the
Executive Council and the consequential
order passed by the Registrar that are put to
challenge before this Court in the present
petition on the ground that the Executive
Council being the disciplinary authority
under Banaras Hindu University Act, 1915
and the statute framed thereunder exercises
a quasi judicial power and, therefore, in the
absence of any provision of law permitting
it to review its decision, such review was
bad for want of lawful authority. Learned
Senior Advocate has also placed a
judgment of this Court in the case of
Gajadhar
Prasad
Mishra
vs.
Vice
Chancellor, University of Allahabad and
others: 1966 All LJ 324 (FB):1965 SCC
Online All 345.

4. Yet another argument has been
advanced by learned Senior Advocate
appearing for the petitioner that even on the
principle offraud and misrepresentation
as twin factors to entitle an authority to
review its decision, were also not available
with the respondents so as to charge the
delinquent employee with fraud and
misrepresentation in obtaining such an
order which has been reviewed. Learned
Advocate has also relied upon two
authorities of Supreme Court in the case of
436 INDIAN LAW REPORTS ALLAHABAD SERIES
Neelima Mishra vs. Harindar Kaur
Paintal: 1990 (2) SCC 746 and Roop
Singh Negi vs. Punjab National Bank and
others: 2009 (2) SCC 570.

5. Sri V.K. Upadhyay, learned Senior
Advocate, appearing for the University has
sought to urge before the Court that matter
is of such gravity involving misconduct on
the part of the delinquent employee that
this Court may not like to exercise its
discretion in equitable jurisdiction under
Article 226 of the Constitution to interfere
with
the
order
of
punishment
of
compulsory retirement. He has further
urged that in the matter of imposition of
penalty in the nature of compulsory
retirement more especially when the
petitioner has already attained the age of 58
years, would not go on to result in any
irreparable loss or injury so as to lead to
any miscarriage of justice. He has also
argued that continuance of such teachers in
faculty is against the interest of students
community especially where
a large
number of female students are there and
even otherwise it will not be conducive to
the academic environment on the campus
of the University to continue such an
employee any further. He submits that the
punishment of compulsory retirement is
factored for various reasons not necessarily
a punishment but in the nature of an action
which discourages such conduct on the part
of the faculty and non faculty members of
the University from showing this kind of
conduct. In respect of his argument, learned
Senior advocate, Mr. Upadhya has placed
reliance on authority of Supreme Court in
the case of Apparel Export Promotion
Council vs. A.K. Chopra: (1999) 1 SCC
759.

6. Briefly stated facts of the case are
that on the basis of complaint by students
regarding his alleged misconduct in making
vague remarks upon the students that
escalated to the degrading and in the nature
of undignified comments termed as vulgar
in nature that taking recourse to the
provisions
of
Sexual
Harassment
of
Women
at
Workplace
(Prevention,
Prohibition and Redressal) Act, 2013
(hereinafter referred to as 'the Act of 2013')
university proceeded to hold enquiry by an
internal complaint committee into the
charges. The internal complaint committee
after holding due enquiry, submitted its
report on 21.12.2018 which was served
upon the petitioner by the Registrar in his
letter dated 24/25.01.2019 providing him
an opportunity to prefer an appeal.
Petitioner
preferred
an
appeal
on
22.02.2019 contending therein that he
never misused or abused his position in any
manner whatsoever while dealing with the
students. The entire matter was placed
before
the
Executive
Council
which
considered the entire material placed before
it including the enquiry report and the
complaints on the basis of which the
enquiry under the Special Act was initiated
and after deliberating upon the findings of
the complaint committee the Executive
Council in its wisdom and discretion
thought it more appropriate to resolve to
impose penalty in the nature of 'censure'
only with further direction that the
petitioner may not be entrusted with any
such
responsibilities
in
future.
The
Executive Council also resolved to observe
that a teacher must ensure a proper and
appropriate behaviour. Interesting to notice
here that this meeting of the Executive
Council was held at Vice Chancellor
Lodge, BHU on 07.06.2019 with the Vice
Chancellor in chair. So it was a conscious
decision taken by the Executive Council
with the Vice Chancellor in chair to impose
penalty in the nature of censure upon the
4 All. Shail Kumar Chaube Vs. State of U.P. & Ors.
437
petitioner with a further resolution not to
entrust him with any such task in future.
The Registrar issued a consequential order
on 16.07.2019 with a further order passed
on 28.08.2019 that the period between
23.10.2019 and 16.07.2019 shall be treated
as a period spent on duty and accordingly
allowed petitioner to draw full pay and
allowances for the aforesaid period after
deducting the subsistence allowance.

7. It transpires that upon some
representation being made by the students'
union, the Vice Chancellor proceeded to
refer the matter back to the Executive
Council for review of its decision taken in
its earlier meeting regarding imposition of
penalty in the nature of censure. With the
approval of Vice Chancellor the Registrar
informed the petitioner about the same vide
letter dated 16.09.2019 asking him to
remain on leave with immediate effect until
the matter is reconsidered by the Executive
Council under reference order of the Vice
Chancellor.

8. It is at this stage that the present
petition was filed questioning the decision
of the Vice Chancellor to refer the matter
for reconsideration and also challenging the
decision of the Executive Council dated
16.07.2019
and
the
consequential
communication made to the petitioner on
17.07.2019. During the pendency of this
petition, the Executive Councilreviewed
its earlier decision in its meeting held on
17.09.2019 by resolving that the petitioner
shall be visited with the major penalty of
compulsory retirement. This resolution
adopted by the Executive Council again
with the Vice Chancellor in chair, as Item
No. 19. The petitioner was issued with a
consequential order by the Registrar
retiring him compulsorily on 21.10.2019.
This resolution clearly stated the resolution
of the Executive Council compulsorily
retiring him was in supersession to its
earlier resolution dated 16.07.2019. The
petitioner amended the writ petition and
challenged the resolution of the Executive
Council dated 27.09.2019 as well as the
consequential order passed by the Registrar
dated 21.10.2019. The following admitted
position emerges out in the case from the
pleadings raised by the respective parties
and discussions made above.

(i) Upon a proper enquiry held
under the Act of 2018, the Executive
Council with the Vice Chancellor in chair
deliberated the entire complaint issue
threadbare and the enquiry report and it is
upon due consideration of the total
circumspect of the case resolved to impose
minor penalty of censure upon the
petitioner vide resolution dated 07.06.2019,
which is reproduced as under:

"ECR 99

ITEM 11

CONSIDERED the report of the
Complaints Committee to inquire into the
facts oft he charges levelled against Prof.
Shair Kumar Chaube, Department of
Zoology, Institute of Science.

The Executive Council perused
the report of the Complaints Committee on
the complaint of 36 students of B.Sc.
(hons.), Semester V Session 2018-19,
Department
of
Zoology,
Institute
of
Science, Banaras Hindu University against
Prof. Shail Kumar Chaube, Department of
Zoology, Institute of Science for their
sexual harassment by Prof. Chaube which
inter-alia conclude as under:

"It needs to be remembered and
recorded that it was only due to the
immediate initial cognizance taken by the
supreme
authority
of
the
university,
Hon'ble Vice-Chancellor, in this case, even
438 INDIAN LAW REPORTS ALLAHABAD SERIES
when the letteer was apparently unsigned,
that the victimized students could take
courage in their hands and appear before
the committee to record their statements
and what was revealed eventually, was not
a single instance of misconduct but a series
of such unworthy behavious by the same
person going continuing through a number
of year."

The
Executive
Council
also
perused the representation of Prof. Shail
Kumar Chaub, Department of Zoology,
Institute of Science on the report of the
Complaint Committee sent to him vide
letter no. R/V&CS/203/2019/709 dated
January 24/25, 2019 refuting the findings
of the Complaint Committee and inter-alia
praying the following:

"It is therefore most respectfully
prayed that in the interest of justice the
esteemed appellate authority may allow the
present appeal and dismiss/decline the
report of the Internal Complaint Committee
and the suspension order of the Respondent
may be revoked with immediate effect.

In the alternative it is respectfully
submitted that some impartial inquiry
officer may be appointed by your esteemed
authority
to
conduct
proper
investigation/inquiry
relating
to
the
charges leveled against the Respondent for
the proper appraisal of the case, so that a
just conclusion can be drawn by your
authority concerned.

It is further prayed that all the
respective
records
consisting
of
documentary and electronic records may
be summoned at the earliest and be kept in
a safe custody till the final disposal of the
present appeal from the office of Internal
Complaint Committee."

After
deliberating
over
the
findings of the Complaint Committee in the
matter and the points put forward in the
representation of Prof. Shail Kumar
Chaube thereon in detail, the Executive
Council was of the opinion that a teacher
must insure a proper and appropriate
behavior
and
conduct
during
his
interactions with the students in the
classroom or outside on an educational
tour to avoid giving rise to such complaints
which not only spread wrong image of the
Institution but also give rise to the
suspicion in the mind of students and their
parents. The Executive Council therefore
resolved as under:

RESOLVED THAT the acts and
conduct of Prof. Shail Kumar Chaube be
censured and he be not entrusted with any
such responsibilities in future.

RESOLVED FURTHER THAT a
proper guideline on the conduct of students
and teachers and stagg accompanying them
on study/excursion/ visit be prepared and
strictly followed by all concerned."

(ii)
Upon
complaint
of
the
students'
union
the
Vice
Chancellor
proceeded to refer the matter back to
theExecutive Council for review without
putting the petitioner to notice and seeking
his explanation vide resolution dated
27.09.2019,
which
is
reproduced
hereunder:

"ECR 129

ITEM 19

CONSIDERED the order of the
Vice-Chancellor for placing the matter
related to the complaint of students against
Professor
Shail
Kumar
Chaube,
Departmemnt of Zoology, Institute of
Science, BHU before the Executive Council
for review of its decision in the matter.

The Executive Council noted that
some students namely Mr. Abhishek, Ms.
Ranjana Saroj, Mr. Anant Shukla, Ms.
Rashmi & Mr. Neeraj Rai wrote a letter
dated 13.9.2019 and a joint representation
date 14..9.2019 of the same nature by some
other students was made to the VIce-
4 All. Shail Kumar Chaube Vs. State of U.P. & Ors.
439
Chancellor.
The
Vice-Chancellor
considered the matter and found that the
matter needed review and ordered on
19.9.2019 for placing the matter before
Executive Council for a review.

The
Executive
Council
reconsider4ed
the
matter.
The
then
Chairperson of the Internal Complaints
Committee (ICC) of the University was
invited in the meeting and she presented
the report of the committee in the case
with minute details. All aspects of the
charges were inquired from her in detail
and each point was clarified by her. The
representations of Professor Shail Kumar
Chaube to the Vice-Chancellor was also
presented in the Executive Council
meeting and the then Chairperson of ICC
clarified on the points raised in the letter
by Professor S.K. Chaube. She explained
that he has given ample opportunity to
defend his case and submit whatever
evidences he wanted to produce before
the ICC in this behalf. All such points and
evidences
submitted
by
him
were
considered and deliberated over by the
ICC minutely before arriving at its
conclusion in the matter.

After detailed deliberation in
the light of the above, it was finally
decided
to
impose
the
penalty
of
compulsory retirement on Professor S.K.
Chaube as per the CCS (CCA) Rules
which was considered appropriate in
the case, by reviewing the earlier
decision in the matter, taken vide ECR
No.99 dated 07.6.2019.

RESOLVED THAT the major
penalty of compulsory retirement be
imposed on Professor Shail Kumar
Chaube,
Departmemnt
of
Zoology,
Institute of Science, BHU as per the CCS
(CCA) Rules, by reviewing the earlier
decision in the matter taken vide ECR No.
99 dated 07.6.2019."

(iii)The Executive Council with
the same Vice Chancellor in chair this time
ignoring the suggestion of Prof. Anand
Mohan Member to refer the matter for
enquiry afresh proceeded to review its
earlier decision and to impose major
penalty of compulsory retirement.

(iv) The Executive Council did
not discuss either the earlier resolution and
reasons during review proceedings, nor did
it refer to the contents of the letter of the
Vice Chancellor by which the matter was
referred to be reviewed, nor the Vice
Chancellors' view has come to be discussed
in the matter. It is a case of review by the
Executive Council of its decision earlier
taken to impose penalty of censure and
replace it by major penalty of compulsory
retirement and that too without any notice
and opportunity of hearing to the petitioner.

9. It is upon the arguments advanced
by learned Senior Advocate appearing for
the respective contesting parties to this lis, I
find the only issue required to be addressed
is whether the Executive Council would
have reviewed its earlier resolution and
thereby could have changed the nature of
penalty from minor to major. The legal
proposition with regard to the power of
review is that unless and until statute or the
law dealing in the field provides for power
of review, no judicial or quasi judicial
authority can exercise this power. Power to
recall an order is of course there if the order
has
been
obtained
by
fraud
or
misrepresentation as in such event the order
would be a nullity. Similar proposition
would prevail in matters of exercise of
administrative authority as no order can be
justified based upon fraud or forgery.

10. In view of the above proposition
of law qua power of review it is to be
examined i.e. as to whether the Executive
440 INDIAN LAW REPORTS ALLAHABAD SERIES
Council acting as a disciplinary authority or
Vice Chancellor as such exercises a quasi
judicial power or administrative power.

11. The Full Bench of this Court in
the case of Gajadhar Prasad Mishra v. Vice
Chancellor,
University
of
Allahabad
(supra) had already answered a reference
that
Vice
Chancellor
of
Allahabad
University while exercising functions in
reflecting punishments upon students for
breach of discipline would be required to
perform quasi judicial functions. The
reference before full bench was thus:

"Whether the Vice-Chancellor of
the Allahabad University is required to
perform
quasi-judicial
functions
in
inflicting punishments upon students for
breach of discipline?"

12. Thus Full Bench of this Court
very categorically held that exercising
disciplinary action/power by an authority
would be in the nature of a quasi judicial
power and not a pure administrative power
as it has traces of adjudication of same
issue by the authority. The Full Bench
relied upon the decision of the Supreme
Court in the case of Calcutta Dock Labour
Board v. Jafar Immam (Civil Appeal
No.560 of 1964 decided on March 22,
1965) reported in 1965 (2) LLJ 112. The
Court vide paragraph nos.55 and 56
referred to the judgment and made analysis
thereof as under:

"55. In Calcutta Dock Labour
Board v. Jaffar Imam, 1965-2 Lab LJ 112:
(AIR 1966 SC 282), the Supreme Court
again made reference to the decision of
Lord Reid in 1964 AC 40. In this case, the
question that arose for consideration was
whether the Calcutta Dock Labour Board,
in exercising its powers to dismiss a dock
worker under Clause 36 (2) of the Scheme
made by the Central Government under the
Dock Workers (Regulation of Employment)
Act, 1948, was required to observe
principles of natural justice or not. It may
be mentioned that Clause 36(3) lays down
that, before any action is taken under
Clause 36 (2), the person concerned shall
be given an opportunity to show cause why
the proposed action should not be taken
against him. Clause 36 (2) empowers the
Board to take action against a registered
dock worker in the reserve pool who is
available for work and fails to comply with
any of the provisions of the Scheme or does
any act of indiscipline or misconduct and
enumerates several punishments that may
be inflicted. Clauses 38 and 39 provide for
appeals against orders of the Board.

In this case, the Supreme Court
observed:--

"There can be no doubt that when
the appellant purports to exercise its
authority to terminate the employment of its
employees such as the respondents in the
present case, it is exercising authority and
power of a quasi-judicial character. In case
where a statutory body or authority is
empowered to terminate the employment of
its employees, the said authority or body
cannot be heard to say that it will exercise
powers without due regard to the principles
of natural justice. The nature or the
character of the proceedings which such a
statutory authority or body must adopt in
exercising its disciplinary power for the
purpose of terminating the employment of
its employees, has been recently considered
by this Court in several cases, vide, 1965-1
Lab LJ 433: (AIR 1965 SC 1595) and (Civil
Appeal No. 764 of 1964, dated 1-3-1965:
(AIR 1965 SC 1767) and it has been held
that in ascertaining the nature of such
proceedings with a view to decide whether
the principles of natural justice ought to be
4 All. Shail Kumar Chaube Vs. State of U.P. & Ors.
441
followed or not, the tests laid down by Lord
Reid in 1964 AC 40 are relevant in view of
these decisions, Sri Sen has not disputed
this position and we think, rightly."

56. This case lays down firstly,
that, in taking disciplinary action against a
dock worker, the Board has to act quasi
judicially
and,
secondly,
that,
in
determining whether an authority has to
follow principles of natural Justice, the
tests kid down by Lord Reid in 1964 AC 40
are relevant. There can be no doubt that
from the nature of the power conferred
upon an administrative body it can be
inferred that it is required to observe
principles of natural justice. Lord Hodson
has observed in 1964 AC 40 that where a
statute confers power to take action against
a subject for misconduct, the authority
exercising
the
power
must
observe
principles of natural justice otherwise it
will result in denial of justice. It is well
settled that even where a statutory
authority acts in a purely administrative
capacity, it must act fairly; and when its
action is likely to seriously affect the rights
of others. it must observe principles of
natural justice. But merely because an
authority must observe principles of
natural justice, it does not necessarily
follow that it has to act quasi judicially
also. In this reference, we have not to
decide whether the Vice Chancellor has to
observe principles of natural justice or not
but whether he is required to act quasi
judicially. The decision of the Supreme
Court in this case, in my opinion, does not
lay down that simply because an authority
is empowered to take disciplinary action, it
must necessarily act quasi judicially. That
an authority, which is empowered to decide
some question of fact and whose decision
seriously affects the rights of the subject, is
not necessarily required to act quasi
judicially also appears from another line of
decisions of the Supreme Court. In
Champaklal Chimanlal Shah v. The Union
of India, AIR 1964 SC 1854, it has been
held that the Government may, on a report
of bad work or misconduct, hold a
preliminary inquiry to satisfy itself that
there is reason to dispense with the services
of a temporary employee or to revert him to
his substantive post. Now, in such cases,
the Government has to decide whether the
employee is guilty of bad work or
misconduct and then to take action against
him which may seriously affect him, in this
case and other cases, the Supreme Court
has held that the Government need not give
the employee an opportunity of being heard
before an order terminating his service or
reverting him is passed. It could not,
therefore, possibly be argued that the
Government was, in such cases, required to
act quasi judicially, even though it had to
decide a question of fact and to take action
which affected the employee."

13. Ultimately the ratio laid down by
the Court was in paragraph no.60 for
arriving at a conclusion which runs as
under:

"It is contended by the appellant
that the nature of the functions exercised by
the
Vice-Chancellor,
when
taking
disciplinary proceedings against a student,
is identical to those exercised by the
Examinations Committee taking action
against an examinee and, since the
Supreme
Court
has
held
that
the
Examinations Committee must act quasijudicially, it must also be held that the
Vice-Chancellor must equally act quasijudicially. I am unable to agree with this.
Wanchoo, J. has approved of the tests laid
down by S. R. Das, J. In Advani's case,
1950 SCR 621: (AIR 1950 SC 222) and he
has applied those tests to the facts of the
442 INDIAN LAW REPORTS ALLAHABAD SERIES
case before him. He has not laid down any
new general principle or test different from
or inconsistent with that laid down and
followed in the earlier decisions of the
Supreme Court. This decision cannot be
read as laying down a rule of law that,
even where the statute or rules made
thereunder do not cast a duty upon an
authority to act quasi-judicially, such a
duty can be inferred merely from the nature
of the powers conferred upon the authority.
In the facts and circumstances of that case
the Supreme Court was of the view that the
Examinations Committee was required to
act quasi-judicially. The question cannot be
decided merely on the basis of similarity of
functions of the Examinations Committee
and of the Vice-Chancellor but it has to be
decided on the basis of the statutes and
rules governing the powers of these two
authorities.
The
provisions
of
the
regulations made under the Intermediate
Education Act regarding exercise of
powers by the Examinations Committee are
different from those of the Allahabad
University Act and the statutes made
thereunder relating to the exercise of
powers
by
the Vice-Chancellor.
The
regulations
cast
a
duty
upon
the
Examinations Committee to take action
against an examinee if it finds that certain
facts specified in R. 1(1) are established.
The Examinations Committee has to
determine these facts objectively upon
materials placed before it. The nature of
the action that may be taken is also
specified. On the other hand, the Allahabad
University Act and the statutes made
thereunder leave the matter of taking
disciplinary action against a student
entirely to the discretion of the ViceChancellor. He is not required to find
whether any specified facts are established
or not. Even where certain facts are
established, no duty is cast upon the ViceChancellor to take disciplinary action. The
discretion of the Vice-Chancellor is not
fettered even in respect of the nature of the
disciplinary action which may be taken.
Therefore, the decision of the Supreme
Court holding that the Examinations
Committee was required to act quasijudicially is not applicable to the present
case in view of the very different provisions
of the Act and the statutes which govern the
exercise of powers by the Vice-Chancellor.
The facts that the Vice-Chancellor may
take assistance of the Proctor and of the
Dean of the Students Welfare in the
exercise of his disciplinary authority and
that the Vice-Chancellor is required by the
statutes to consult the Dean of the Students
Welfare before taking disciplinary action
against a student cannot have any bearing
on the question whether the power is to be
exercised by him quasi-judicially or not."

14. Emphasizing upon the principle
behind
quasi
judicial
power
and
administrative
power,
learned
Senior
Advocate has asserted that the test is to see
whether there is an obligation to adopt
quasi judicial approach is cast upon
authority or not. It is submitted that this
would be necessary ingredient for exercise
of power where the justice so requires and
if there is no such obligation then the order
would be purely administrative. He submits
that where the order requires to be passed
not upon any administrative policy but to
adjudicate upon an issue to evaluate the
evidence to arrive at a conclusion would
have traces of quasi judicial power. In
Neelima Mishra's case, Supreme Court has
considered this aspect of the matter vide
paragraph nos. 21 and 22 thus:

"21. Prof. Wade says "A judicial
decision is made according to law. An
administrative decision is made according
4 All. Shail Kumar Chaube Vs. State of U.P. & Ors.
443
to administrative policy. A quasi-judicial
function is an administrative function
which the law requires to be exer- cised in
some respects as if it were judicial. A
quasi- judicial decision is, therefore, an
administrative decision which is subject to
some measure of judicial procedure, such
as the principles of natural justice."

22.
An
administrative
order
which involves civil consequences must be
made consistently with the rule expressed
in the Latin Maxim audi alteram partem. It
means that the decision maker should
afford to any party to a dispute an
opportunity to present his case. A large
number of authorities are on this point and
we will not travel over the field of
authorities. What is now not in dispute.is
that the person concerned must be
informed of the case against him and the
evidence support thereof and must be given
a fair opportunity to meet the case before
an adverse decision is taken."

15. In the case of Roop Singh Negi v.
Punjab National Bank and others:(2009)
2 SCC 570, the Court had relied upon its
earlier judgment in the case of Moni
Shankar v. Union of India wherein the
departmental proceedings was held to be
quasi judicial one. Vide paragraph nos. 17
and 18 the Court referred to the two
judgments that are reproduced hereunder:

17. The departmental proceeding
is a quasi judicial one. Although the
provisions of the Evidence Act are not
applicable
in
the
said
proceeding,
principles of natural justice are required to
be complied with. The Court exercising
power of judicial review are entitled to
consider as to whether while inferring
commission of misconduct on the part of a
delinquent
officer
relevant
piece
of
evidence has been taken into consideration
and irrelevant facts have been excluded
therefrom. Inference on facts must be based
on evidence which meet the requirements of
legal principles. The Tribunal was, thus,
entitled to arrive at its own conclusion on
the premise that the evidence adduced by
the department, even if it is taken on its
face value to be correct in its entirety, meet
the requirements of burden of proof,
namely, preponderance of probability. If on
such evidences, the test of the doctrine of
proportionality has not been satisfied, the
Tribunal was within its domain to interfere.
We must place on record that the doctrine
of unreasonableness is giving way to the
doctrine of proportionality."

18. In Narinder Mohan Arya vs.
United India Insurance Co. Ltd. & ors.
(supra), whereupon both the learned
counsel relied upon, this Court held:

"26. In our opinion the learned
Single Judge and consequently the Division
Bench of the High Court did not pose unto
themselves the correct question. The matter
can be viewed from two angles. Despite
limited jurisdiction a civil court, it was
entitled to interfere in a case where the
report of the Enquiry Officer is based on no
evidence. In a suit filed by a delinquent
employee in a civil court as also a writ
court, in the event the findings arrived at in
the
departmental
proceedings
are
questioned before it should keep in mind
the following: (1) the enquiry officer is not
permitted to collect any material from
outside sources during the conduct of the
enquiry. [See State of Assam and Anr. v.
Mahendra Kumar Das and Ors. [(1970) 1
SCC 709] (2) In a domestic enquiry
fairness in the procedure is a part of the
principles of natural justice [See Khem
Chand v. Union of India and Ors. (1958
SCR 1080) and State of Uttar Pradesh v.
Om Prakash Gupta (1969) 3 SCC 775]. (3)
Exercise of discretionary power involve
444 INDIAN LAW REPORTS ALLAHABAD SERIES
two elements (i) Objective and (ii)
subjective and existence of the exercise of
an objective element is a condition
precedent for exercise of the subjective
element. [See K.L. Tripathi v. State of Bank
of India and Ors. (1984) 1 SCC 43]. (4) It
is not possible to lay down any rigid rules of
the principles of natural justice which
depends on the facts and circumstances of
each case but the concept of fair play in
action is the basis. [See Sawai Singh v. State
of Rajasthan (1986) 3 SCC 454] (5) The
enquiry officer is not permitted to travel
beyond the charges and any punishment
imposed on the basis of a finding which was
not the subject matter of the charges is wholly
illegal. [See Director (Inspection & quality
Control) Export Inspection Council of India
and Ors. v. Kalyan Kumar Mitra and Ors.
1987 (2) Cal. LJ 344. (6) Suspicion or
presumption cannot take the place of proof
even in a domestic enquiry. The writ court is
entitled to interfere with the findings of the
fact of any tribunal or authority in certain
circumstances.?

16. The Court also referred to another
judgment in the case of M.V. Bijlani v.
Union of India: (2006) 5 SCC 88 in which
the Court held that the enquiry officer
performed a quasi judicial function and the
Court in another judgment of Jasbir Singh did
not approve decision of the disciplinary
authority which was not couched with the
reasons. The Court held that a decision to be
arrived at must be based upon some evidence
which is legally admissible. Vide paragraph
nos.21 and 22, the Court held thus:

"Yet again in M.V. Bijlani vs.
Union of India & ors. (2006) 5 SCC 88,
this Court held:

"....Although the charges in a
departmental proceedings are not required
to be proved like a criminal trial, i.e.,
beyond all reasonable doubts, we cannot
lose sight of the fact that the Enquiry
Officer performs a quasi-judicial function,
who upon analysing the documents must
arrive at a conclusion that there had been a
preponderance of probability to prove the
charges on the basis of materials on
record. While doing so, he cannot take into
consideration any irrelevant fact. He
cannot refuse to consider the relevant facts.
He cannot shift the burden of proof. He
cannot reject the relevant testimony of the
witnesses only on the basis of surmises and
conjectures. He cannot enquire into the
allegations with which the delinquent
officer had not been charged with."

16. Yet again in Jasbir Singh vs.
Punjab & Sind Bank & ors. [(2007) 1 SCC
566], this court followed Narinder Mohan
Arya vs. United India Insurance Co. Ltd. &
ors. (supra), stating:

"12. In a case of this nature,
therefore, the High Court should have
applied its mind to the fact of the matter
with reference to the materials brought on
records. It failed to do so."

17. Thus it is clear that the Executive
Council being a disciplinary authority in
the case in hand was performing a quasi
judicial function while deliberating upon an
enquiry report and adopting a resolution to
impose punishment upon the petitioner
under the relevant Act and rules.

18. It is admitted to the parties that
University being Central University has
approved CCS (Classification, Control and
Appeal) Rules, 1965 (CCS Rules) that
provide for different penalties, both minor
and major. Vide paragraph 8 of the counter
affidavit it has been stated that 'the
disciplinary proceeding was initiated under
Rule 14 of CCS(CCA) Rules, 1965 against
the petitioner'. Rule 11 prescribes minor as
4 All. Shail Kumar Chaube Vs. State of U.P. & Ors.
445
well as major penalties. Vide Clause VII of
Rule 11, compulsory retirement has been
prescribed as major penalty.

19. Now coming to Rule 14 of CCS
Rules that lays down procedure for
imposition of major penalty upon the
employees, it provides for a detailed
enquiry to be held evaluating both oral and
documentary evidence led before the
enquiry officer and pursuant to the enquiry
report led before the disciplinary authority,
it is to take action thereupon to punish or
not to punish the delinquent employee.

20. Rule 15 of CCS Rules provides
procedure for taking action on the enquiry
report which prescribes opportunity of
representation
being
afforded
to
the
delinquent employee in respect of the
proposed action and then Rule 17 thereof
prescribes for communication of the
order/decision taken by the disciplinary
authority in the matter.

21. I do not see any provision
contained under the CCS Rules that
provides for review of the decision taken
by the disciplinary authority suo moto as
has been done in the present case. Thus the
disciplinary authority in the matter of
imposition of punishment after due enquiry
held, in the absence of provision to review
its decision and to change penalty from
minor to major cannot be justified and
deserves to be quashed.

22. Before testing the resolutions in
question passed by the Executive Council,
it is also necessary here to refer to the
relevant provisions of the Banaras Hindu
University Act, 1915 (hereinafter referred
to as 'University's Act, 1915') and the
statute framed thereunder. Section 6 of the
University's Act 1915 which provides for
different Officers of the University runs as
under:

"6. The following shall be the
officers of the University, namely :-

(a) The Chancellor

(b) The Vice-Chancellor

(c) The Rector

(d) The Registrar

(e) The Finance Officer

(f) The Deans of Faculties