# DR. AKSHAIBAR LAL AND OTHERS v. THE VICE-CHANCELLOR, BANARAS HINDU UNIVERSITY, AND·OTHERS

- **Citation:** [1961] 3 S.C.R. 386
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeals NOS. Banaras Hindu 480 to 487 of 1960
- **Bench:** S. K. D.As, M. HrDAYATULLAH, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-akshaibar-lal-and-others-v-the-vice-chancellor-banaras-hindu-university-and-2013
- **Pages:** 20

## Headnote

Ranaras University-Disciplinary action against employeesEnactment providing for special procedure-Ent~ctment. whether
supersedes earlier procedure or a~reements-Banaras H1'ndu, University Act, 1915 (r6 of I9I5). s. r8-0rdinance No. 6-Banaras Hindu
University (Amendment) Act, 1958 (34 of 1958), Stalttte No. 30, as
amended.
On June !4. 1958, the President of India promulgated an
Ordinance to amend the Banaras Hindu University Act, rgrs. By
s. 8 of the Ordinance, the Statutes of the University were
amended, and in place of Statute No. 30, another st;1tute was
substituted, which set up a "Screening Committee" to examine
the cases of all persons holding teaching, administrative or other
posts in the University at the commencement of the Ordinance,
in respect of whom there was reason to believe that their continu·
ance iu office woulrl be detrimental to the interests of the
University, and to forward its recommendations to the Executive
Council to take such action as it may deem fit. The Ordinance
was repealed by the Banaras Hindu University (Amendment)
Act, rg58, which re-enacted Statute No. 30. Under the re-enacted
Statute before any action could be taken by the Executive Council
as referred to above, the matter had first to be referred to the
Solicitor-General of the Government of India, who, if he was of
the opinion that there was pri rna facie case for inquiry, shall refer
the case of the person concerned to a committee, known as the
Reviewing Committee. On receipt of the recommendations of the
Reviewing Committee, the Executive Council was to take such
action thereon as it thought fit, after giving the person concerned
a reasonable opportunity for being heard. Apart from Statute
No. 30, added by Parliament, the Executive Council could terminate the engagement of an employee by taking action under the
terms of the agreement, where such agreement existed, or under
Ordinance No. 6, framed under the Act, without assigning a cause,
on four months' notice or four months' salary in lieu of notice.
The cases of the appellants who held posts under the Univer~
sity were considered in accordance with the procedure laid down
in Statute No. 30 by the Solicitor-General who then sent up their
cases to the Reviewing Committee. The appellants appeared
before the Committee and made their representations. The Committee sent its findings in respect of the appellants except one to
the Executive Council who then called upon four of them to show
cause why their services should not be terminated, in view of the
3 S.C.R.
SUPREME COURT REPORTS
387
findings of the Committee that the continuance in office of those
I96I
appellants was detrimental to the interests of the University. No·
·-
notices, however, were sent to appellants 2, 4, 5 and 6. Appel- Dr. Akshaibar Lal
lants I, 3. 7 and 8 having filed petitions in the High Court ot
v.
Allahabad under Art. 226 of the Constitution of India for relief Vice-Chance_llor,
against the proposed action and proceedings having been stayed, Banaras Hindu
the Executive Council passed a resolution, No. 8g, on May 15,
University
rg6o, that the consideration of their cases was postponed till after
the writ petitions were disposed of by the High Court. On the
same day, however, the Executive Council passed r esolutions,
Nos. go, 94 to g6 and 99 to roz. terminating the services of all
the appellants giving them four or six months' salary in lieu of
notice. The appellants challenged the validity of the resolutions
on the grounds, inter alia,
(1) that the Executive Council could
not take recourse to the provi.c:.ions of Ordinance No. 6 having
started action under Statute No. 30, (2) that Ordinance No. 6 was
subordinate to Statute No. 30 and could not p revail where
Statute So. 30 applied,
(3) that action against respondents I , 3,
7 and f\ \\':\s stayed by the High Court and resolution No. 89 and
that any action thereafter under the agreement or Ordinance
No. 6 was incompetent, and (4) that, in any case, the action of
the E

## Text

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january ro,
. \
386
SUPREME COURT REPORTS
[1961]
DR. AKSHAIBAR LAL AND OTHERS
v.
THE VICE-CHANCELLOR, BANARAS HINDU
UNIVERSITY, AND·OTHERS.
(and connected appeals)
(S. K. D.As, M. HrDAYATULLAH and J. C. SHAH, JJ.)
Ranaras University-Disciplinary action against employeesEnactment providing for special procedure-Ent~ctment. whether
supersedes earlier procedure or a~reements-Banaras H1'ndu, University Act, 1915 (r6 of I9I5). s. r8-0rdinance No. 6-Banaras Hindu
University (Amendment) Act, 1958 (34 of 1958), Stalttte No. 30, as
amended.
On June !4. 1958, the President of India promulgated an
Ordinance to amend the Banaras Hindu University Act, rgrs. By
s. 8 of the Ordinance, the Statutes of the University were
amended, and in place of Statute No. 30, another st;1tute was
substituted, which set up a "Screening Committee" to examine
the cases of all persons holding teaching, administrative or other
posts in the University at the commencement of the Ordinance,
in respect of whom there was reason to believe that their continu·
ance iu office woulrl be detrimental to the interests of the
University, and to forward its recommendations to the Executive
Council to take such action as it may deem fit. The Ordinance
was repealed by the Banaras Hindu University (Amendment)
Act, rg58, which re-enacted Statute No. 30. Under the re-enacted
Statute before any action could be taken by the Executive Council
as referred to above, the matter had first to be referred to the
Solicitor-General of the Government of India, who, if he was of
the opinion that there was pri rna facie case for inquiry, shall refer
the case of the person concerned to a committee, known as the
Reviewing Committee. On receipt of the recommendations of the
Reviewing Committee, the Executive Council was to take such
action thereon as it thought fit, after giving the person concerned
a reasonable opportunity for being heard. Apart from Statute
No. 30, added by Parliament, the Executive Council could terminate the engagement of an employee by taking action under the
terms of the agreement, where such agreement existed, or under
Ordinance No. 6, framed under the Act, without assigning a cause,
on four months' notice or four months' salary in lieu of notice.
The cases of the appellants who held posts under the Univer~
sity were considered in accordance with the procedure laid down
in Statute No. 30 by the Solicitor-General who then sent up their
cases to the Reviewing Committee. The appellants appeared
before the Committee and made their representations. The Committee sent its findings in respect of the appellants except one to
the Executive Council who then called upon four of them to show
cause why their services should not be terminated, in view of the
3 S.C.R.
SUPREME COURT REPORTS
387
findings of the Committee that the continuance in office of those
I96I
appellants was detrimental to the interests of the University. No·
·-
notices, however, were sent to appellants 2, 4, 5 and 6. Appel- Dr. Akshaibar Lal
lants I, 3. 7 and 8 having filed petitions in the High Court ot
v.
Allahabad under Art. 226 of the Constitution of India for relief Vice-Chance_llor,
against the proposed action and proceedings having been stayed, Banaras Hindu
the Executive Council passed a resolution, No. 8g, on May 15,
University
rg6o, that the consideration of their cases was postponed till after
the writ petitions were disposed of by the High Court. On the
same day, however, the Executive Council passed r esolutions,
Nos. go, 94 to g6 and 99 to roz. terminating the services of all
the appellants giving them four or six months' salary in lieu of
notice. The appellants challenged the validity of the resolutions
on the grounds, inter alia,
(1) that the Executive Council could
not take recourse to the provi.c:.ions of Ordinance No. 6 having
started action under Statute No. 30, (2) that Ordinance No. 6 was
subordinate to Statute No. 30 and could not p revail where
Statute So. 30 applied,
(3) that action against respondents I , 3,
7 and f\ \\':\s stayed by the High Court and resolution No. 89 and
that any action thereafter under the agreement or Ordinance
No. 6 was incompetent, and (4) that, in any case, the action of
the Executive Council was mala fide and a fraud upon the University Act and Statute No. 30. The case for the University authorities was that the Executive Council could take action under the
terms oi the agreements, where such agreements existed or under
Ordinance No.6 or Statute No. 30 at its option. and that where
alternative remedies were provided by law,. all or any of the
remedies could be invoked :
Held, that the impugned resolutions were ultra vires and
should be quashed.
The power of terminating services without notice could not
be invoked in the present case, where allegations of conduct
detrimental io the interests of the University had already been
made and scrutinised by the Solicitor-General and the Reviewing
Committee and the matter was penning before the Executive
Council. The powers granted by the Ordinances were expressly
subject to the Statutes, and the Ordinances could not prevail
over the Statutes.
State of K.crala v. C. M. Francis and Co. [ rg<Jr] 3 S.C.R. r8r,
distinguished.
The words ''shall take such action thereon as it may think
fit" in Statute No. 30, gave liberty of action on the recommendations of the R eviewing Committee but lay a duty to form an
opinion. The words did not give a discretion to take action outside
the Statute.
The action taken by the University authorities could only be
questioned if it was ultra vires and proof of alien or irrelevant
motive was only an example of the ultra vires character of the
action. The court was not concerned so much with the motives,
388
SUPREME COURT REPORTS
[1961]
I9(H
nor even wit~1 the justice of the action taken by a public body,
--
like the University, as with its legality.
Dr. Akshaibar Lal
S
1 C
·
6 C 6
'
v.
hort v. Poo.e orporatwn [192 J h. 6, relted on.
Viet-Chancellor,
CIVIL APPELLATE JURISDICTION : Civil Appeals NOS.
Banaras Hindu 480 to 487 of 1960.
University
Hidayatullah ].
Appeals by special leave from the judgment and
order dated July 15, 1960, of the Allahabad High Court
in Civil lVIisc. \Vrit Nos. 1554, 1561, 1553, 1560, 1556,
1558, 1559 and 1557 of 1960.
N. 0. Chatterjet, R. K. Garg, S: 0. Agarwal, D. P.
Singh, K. K. Sinha, V. A. Seyid Muhamad and M. 1\..
Ramamurthi, for the appellants (in C. As. Nos. 480 and
481 of 60).
R. K. Garg, lrf. K. Ramamurthi, S. 0. Agarwal, D. P.
Singh, V, A. Seyid Muham.ad and K. K. Sinha, for the
appellants (in C. As. Nos. 482 to 487 of 60).
G. N. Kunzru and J. N. Shroff, for the respondents.
1961. January 10. The Judgment of the Court
was delivered by
HIDAYATULLAH, tT.-These are eight appeals
against the judgment and "decree" of the High Court
of Allahabad dated '-July 15, 1960, with special leave
granted by this Court. By the writ petitions, which
failed before the High Court, the appellants had asked
that Resolutions Nos. 90, 94 to 96 a·nd 99 to 102
passed by the Executive Council of the Banaras Hindu
University-on ~lay 15, 1960, terminating their services
fr01n June 1, 1960, be quashed. The names of the
appellants, the posts they held and the gist of the
Resolutions passed against them have been set down
below ;
Group 1
1. Dr. Akshaibar Lal :
Header in College of
~
(C. A. No. 480 of 1960)
Agriculturt2.
(Resolution No. 100-4 n1onths' pay in lieu of
~
notice)
2. Dr. Gopal 'l'ripathi :
Professor of Chenli-
(C. A. No. 482 of 1960)
c:al Engineering and
Prjncipal, College of
Technology.
(Hesolution :'\ o. 101-4 month~ '
pay in lieu of
notice)
3 S.U.R.
~UPREl\tlE COURT REPORTS
389
3. Pandit Ram Vyas Pandey : Reader and Head of
1961
(C. A. No. 486 of 1960)
Department of J yo- lJr. Akshaibar Lal
tish-Sanskrit Mahav.
vidyala ya.
Vice-ChtJncellor,
(Resolution No. 99-under cis. 4 and 7 of the agreeBanaras Hindu
d
University
ment dated 1\:Iarch 26, 1931, and Or inance No. 6 of
the Ordinances of the Univer~ity-6 months' pay in
Hidayatullahf.
lieu of notice)
4. Dr. Gauri Shankar '1
1iwa·ti :
(C. A. No. 487 of 1960)
Lecturer in Chemistry-Central Hindu
(;ollege (Kamachha)
(Resolution No. 102-4 months' pay in lieu of
notice)
Group II
5. D-r. Ram Deo Misra:
(C. A. No. 481 of 1960)
Professor and Head
of Department of
Botany, College of
Science.
(Resolution No. 94-under cis. 4 and 7 of the agreement dated February 3, 1959, and Ordinance No. 6 of
the Ordinances of the University-4 rnonths' pay in
iieu of notice)
6. Mr. Ganesh Prasad Singh : Lecturer in Physical
(C. A. No. 483 of 1960) ·
Education, Teachers'
Training College.
(Resolution No. 95-under cis. 4 and 7 of the agreement dated January 18, 1946, and Ordinance No.6 of
the Ordinances of the University-6 months, pay in
li~u of notice)
7. Mr. Radhe-y Shyam Shat·1na: Lecturer, College of
(C. A. No. 484 of 1960)
Technology.
(Resolution No. 90-under cis. 4 and 9 of the agreement dated J anua.ry 21, 1957, and Ordinance No. 6 of
the Ordinances of the University-4 months' pa.y in
lieu of notice)
8. Dr. Ram Yash Roy:
Lecturer in Botany,
(C. A. No. 485 of 1960)
College of Science.
(Resolution No. 96-under cls. 4 and 7 of the agreement dated August 12, 1932, and Ordinance No.6 of
the Ordinances of the University-6 months' pay in
lieu of notice).
390
[1961]
:r96I
The cases of the appellants are very sin1ilar; but
Dr. Akshaibar Lal fall into two groups as indicated above.
The
v.
differences are not many, and some of them are indiVice-Chancellor, cated in the gist of the resolu t.ions not Pel against their
Banaras Hindu names. Other differences will appear from the facts,
University
which are given below.
Hidayatullalt 1.
The affairs of the Banaras Hindu l)niversity, for
reasons with which we are not concerned, had been
deteriorating, and a situation had arisen which
required intervention imnlCdia.tely.
The President uf
India, in his capacity as Visitor and in exercise of the
powers conferred by s. 5(2) of the Banaras Hindu
University Aet, 1915, appointed a Committee of
Enquiry (known as the ~ludaliar Committee) consisting of:
I. Dr. A. L. Mudaliar (President)
2. Mr. !1. C. ~iahajan
3. Dt·. P. ~ubbarayan
4. Smt. Sucheta Kripalani
5. Dr. Nairoji Wadia (Members)
to enquire into and report, inter alia, on the general
state of discipline in the University, keeping in view
the disturbances in s01ne of the Inst.itutions of the
Universityt and to suggest remedies and measures of
reforn1 for the bettenncut of academic life and efficient
functioning of the University. The Comtnittee made
a report suggesting that a •' Screening Committee ''
should be appointed to review the appointments made
to the teaching staff a.nd the work of the teaching
staff, and that action should be taken in the light of
t he findings of the Screening Committee.
~
On June 14, 1958, the President of India promulgat.
~
ed an Ordinance (IV of 1958) to amend the Banaras
l
Hindu University Act, HH5. By s. 8 of the Ordinance,
the Statutes of the University were amended, and in
place of Statute No. 30, another Statute was substituted, which set up a "Screening Committee '\ consisting of (a) a person who is or has been a Judge of a.
High Court (Chairman), (b) the Vice-Chanceilor (Ex
officio) and (c) a person having administrative or other
experience in educational matters, to examine the cases
of all persons holding teaching, administrative or other
3 S.C.R.
SUPREME COURT REPORTS
:301
posts in the Universit.y at the commencement of the
1 961
Ordinance, in respect of whom there was reason t_o Dr. Akshaibar Lal
believe that their continuance in office would be detrt·
v.
mental to the interests of the University, and to Vice-Chancellor,
forward its recommendations to the Executive Council Bana1as Hindu
to take such action as it may deem fit.
University
The Ordinance of the President was repealed by the Hidayatullah .J.
Banaras Hin:1u University (Amendn1ent) Act~ 1958
(XXXIV of 1958), which re-enacted Statute No. 30 as
follows:
u 30. (1) If· the Executive Council has reason to
believe that the continuance in office of any person
who on the 14th day of J unP-, 1958, was holding any
teaching, administrative or otlwr· post in t.he University would be detrimental to the intt:rest.s of the
University, it may, aftrr recording briefly the
grounds for sueh be1ief, refer the case of any such
person, together with t.he connected papers, if atJy,
in its possession, to the Solicitor-General to the
Government of India :
Povided that, where an allegation of the n-ature
referred to in this sub-section reJateH to a member of
the Executive Council who 'vas holding any teaching, admiuistrat.ive or othP-r post in the University
on the said date, the Executi \·e Council shall, without
considering the allegation, refer the case of such
perso~1, together with a 'copy of the allegation, t.o the
Solicitor-General t.o the Governrnen~ of India ..
(2) If on any such reference the Solicitor-General
to the Government of I11dia is of opinion that there
is a prima facie case for inquiry, he shall refel' the
case of the person concerned to a Committee to be
constituted for the purpose by t he Central Government and known as the Reviewing Committee, which
shall consist of the follo,ving persons, namely :-
(a) a person who is or has been a Judge of a
High Court nominated by the Central Government
who shall be the Chairman of the Committee; and
(b) two persons nominated by the Central Government from- among persons who have had administr~tin~ or other experience in educational matters,
392
SUPREME COURT REPORTS
[1961]
I96I
Dr. A kshaibar Lal
v.
(3) It shall be the duty of the Reviewing Commit.
tee to examine the case of every person referred to
it by the Solicitor-General; and the Reviewing Com~
mittee shall, after holding such inquiry into the case
as it n1ay think fit, and after giving to the person
concerned an opportunity of being heart!, if he so
desires, forward its recommendations to the Execuiive Council.
V ice-Chwnce llor,
Banaras Hindu
University
Hidayatullah J.
•
(4) The meetings of the Reviewing Committee
shall be convened b.Y such person as may be appoint~
ed for this purpose by the Chairman.
(5) On receipt of the recommendations of the
Reviewing Committee, the Executive Council shall
take such action thereon as it n1ay think fit :
Provided that when the recommendations relate
to any such person as is referred to in the proviso
to sub-section (1), such person shall not take part in
any meeting of the Executive Council in which the
recommendations are considered.
(6) Before taking any action against any person
on the recommendations of the Reviewing Committee, the Executive Council shall give him a reasonable opportunity of being heard."
Under the powers granted by this Statute and after
sundry procedure, the Solicitor-Geners.tl sent up the
cases of the appellants (and some others, who are not
before us) to -the Reviewing Committee. The appellants appeared before the Hev.iewing Committee and
represented their cases.
Except in the case of
Mr. Radhey Shyam Sharma (Civil Appeal No. 484 of
1960), whose case was kept pending because certain
matters were sub judice, the Reviewing Committee sent
its findings to the University. These findings were
considered in respect of the four appellants in Group I
(above), and on February 13, 1960, the Executive
Council passed Resolutions Nos. 436 to 439 calling upon
them to show cause why their services be not termi·
nated, in view of the findings of the Reviewing Committee that the continuance in office of those appellants
was detrimental to the interests of the University, which
the Executive Council had accepted. These four
appellants showed cause on }I arch 5, 1960. No notices
3 S.C.R.
SUPRE\£E COURT REPORTS
393
were, however, sent to the four appellants in Group II
1961
above, and this is one distinguishing feature in the Dr. Ak-;;:bar Lal
cases.
v.
The four appellants (Group I) filed. petitions under Vice-Chancellor.
Art. 226 of the Constitution (W. Ps. Nos. 712 to 715 of Banaras Hindu
1960) on March 9, 1960, in the High Court of Allahabad
Ut~iversity
for relief against the proposed action. On the same day Hidayatullah J.
D. S. Mathur, J. passed an ad interim order as follows:
"The respondents Nos. 1 to 3 are directed until
further orders, not to t_ake any further proceedings
against the petitioners."
The Registrar· of the University then applied to the
High Court, and on April 25, 1960, Jagdish Sahai, J.,
made the following order: .
''In supersession of the interim order dated
9-3-1960, I order that the proceedings before respondent No. 2, Executive Council ofBanaras Hindu
University, arising out of the recommendations of
the Reviewing Cornmittee shall remain stayed.H
On May 15, 1960, the Executive Council of the
University passed a number of Resolutions. Resolution
N Q. 89 took into consideration the explanations sent by
the four appellants (Group I) on March 5, 1960, and
the order of the High Court, and it was resolved:
'' ...... that the consideration of the above cases be
postponed till after the writ petitions abovementioned are disposed of by the High Court."
On the same day, however, Resolutions Nos. 99" to
102 were passed terminating the services of the four
appellants (Group I) from 'June 1, 1960, giving to them
four or six months' salary, in lieu of notice. In the
Resolution concerning Pandit Ram Vyas Pandey, there
was a mention that the action was taken under cis. 4
and 7 of the agreement executed by him and Ordinance
No. 6 of the Ordinances of the University. In the
remaining three cases, it was not stated under what
exercise of power the action was taken. Even earlier
than the notice to show cause issued on ],ebruary 13,
1960, explanations were called from Pandit Ram Vyas
Pandey and Dr. Gopal Tripathi by Resolutions Nos.
278 and 281 dated September 9, 1959, and these explanations were ordered to be filed by Resolution No. 103
394
SUPREME COURT REPORTS
[1961]
1961
passed on the same day. Four Resolutions were also .
Dr. Akshaibar L(l! passed terminating the services of the other appellants
v.
belonging to Group II.
Vice-Chancellor,
It was after theRe Resolutions we-re communicated
Banaras Hindu that the eight petitions were filed by the appellants in
University
the High Court of Allahabad. The High Court by a
Hidayatullah J. common judgment., which is under appeal, dismissed all
the petitions with costs.
The case of the appellants, broadly stated, is that
the Executive Council could not take recourse to the
provisions of Ordinance No. 6 of the Ordinance~ of the
University, having started action under Statute
No. 30, that Ordinance No. 6 was subordinate to
Statute No. 30 and could not prevail where Statute
No. 30 applied, that action against the four appellants
in Group I was stayed by the High Court and Resolution No. 89, and that any action thereafter under
the agreetnent or·Ordinance No. 6 was incompetent.
The action ofthe Executive Cpuncil was characterised
as malafide and a fraud upon the University Act and
Statute No. 30. The High Court did not accept any
of these contentions. Before us, the same points have
, been urged again, and in reply, the University con-
. tends that the Executive Council could take action
under the terms of the agreements, where such agreements existed; or under Ordinance No. 6 or Statute
No. -30 at ·its option, and that where alternative
reinedies were provided by Ia w, all or any of the
remedies could be invoked.
Before we deal with these arguments, it is necessary
to examine closely the powers of the Executive Council
of the University, as they can be gathered from the
Banaras Hinrlu University Act, the Statutes and Ordin·
ancrs framed under it. The Act wets passed in 1915
(XVI of 1915), but it was amended in 1930, 1951 and
1958. Origina1ly, the Act provided for the framing of
St atntrs and H.egula tions by the University ; but in
1951, the existing H,pgnlations were deemed to be the
firsL Urdinances under s. 18(2) of the mnenrled Act. A
further power to make Regulations was conferred by
s. 19. Thereafter, there were Regulations in addition
to the ·univ,ersity Act, Statutes and Ordinances. vVe
)
'
\-
3 S.C.R.
SUPREME COURT REPORTS
395
are not concerned with the Regulations, and no referIg6r
ence need be made to them except to say that they .
ranked below the Ordinances and had to be consistent
D1
Aksh<lil>ar Lal
v.
with the Act, the Statutes and the Ordinances.
Vice-Chancellor.
In the Act, th£3 word "Statute , was defined to BaMras Hindu
mean " the Statutes for the time being in force", and
University
there was an analogous definition of the word "Ordinances,,. Section 17(~) of the Act enacted that ~'the first H id-ryatullah J.
Statutes shall be those set out in Schedule I '
1
•
The
power to frame Statutes wa.s conferred on the Executive Council by s. 17(3), but was subject to the previous
approval of the Visitor. This sub-section, as it was
amended by s. 4 of the Banaras Hindu University
(Amendment) Act, 1958, read as follows:
''The Executive Council may, fron1 time to time,
make new or additional Statutes or may amend or
repeal the Statutes; but every new Statute or addi.
tion to the Statutes or any amendment OL' repeal of
:t Statute shall require the previous approval of the
Visitor who may sanction, disallow or remit it for
further consideration."
Section 4A of the Act invested the University with
powers, and sub-ss. (7) and (13) n1ay be quoted here:
"(7) to institute professorships, readerships, lectureships and other teaching posts required by the
university and to appoint persons to such prufessorships, readerships, lectureships and other posts;
(13) to create administrative, ministerial and other
necessary posts and to make appointments thereto."
Section 7 of the Act named the officers and authorities of the University, but power was reserved to the
University to declare, by statutes, other officers and
authorities of the University.
In addition to being an authority of the University,
the Executive Council was appointed the executive
body of the University. Sub-section (2) of s. 10 of the
Act laid down :
"The Executive Council shall exercise such powers
and perform such duties as may be vested in it by
. the Statutes.,,
Section 17· of the Act provided how the statutes were
to he fnuned aud what they weJ'e to contain. \\' e
396
SUPREME COURT REPORTS
[1961]
I961
ha.ve already referred to the first Statutes of the Uni·
Dr. Akshibar Lal varsity which were placed in Schedule I of the Act
v.
and the power of the Executive Council to make new
Vice-Chancellor, or additional Statutes or to amend or repeal existing
Banaras Hindu Statutes subject to the prior approval of the Visitor.
University
Section 17 provided :
Hidayatullah f.
"17(1). Subject to the provisions of this Act, the
Statutes may provide for all or any of the following
matters, namely:-
.......................................................................
(c) the appointment, powers and duties of the
officers of the University."
.
From the above analysis, it is clear that the Act
created the Executive Council as an authority and the
executive body of the University; but its powers were
conferred and its duties were created by the Statutes.
The source of power and duties in respect of the Executive. Council was thus the Statutes under the authority of the Act.
Section 18 of the Act (as amended in 1951) provided:
"18(1). Subject to the provisions of this Act and
the Statutes, the Ordinances may provide for all or
any of the following matters, namely :-
Ordinances :
··•••·•·•··••••••••··•··••·••·•········•••••·············••••·•···•··
(k) the emoluments and terms and conditions of
service of teachers of the University."
The Ordinances were thus made subordinate to the Act
and the Statutes, and could not go beyond them or
derogate from them..
.
One more provision of the Act as amended in 1951
may be read here. It is s. I9A, which provided :
" 19A. (1) Every salaried officer and teacher of the
University shall be appointed under a written con~
tract, which shall be lodged with the University and
a copy of which shall be furnished to the officer or
teacher concerned.
·
(2) Any dispute arising out of a contract between
the University and any of its officers or teachers shall,
attherequestofthe officer or teacher concerned or at
the instance of the University, be referred to a Tribu~
nalof Arbitration consisting of cne member appointed
'
' ! ' \
I '
'
' t
l
3 S.C.R.
SUPREME COURT REPORTS
397
by the Executive Council, one member nominated
r96r
by the officer or teacher concerned and an umpire
Ak-h--:-b
L 1
.
d b
th v· 't
d th d
. .
f th Dr,
s ar a,.
a
a pp01nte
y
e
lSI or, an
e
eciSIOn o
e
v.
Tribunal shall be final.,,
Vict:·Chancellor,
The powers granted to the Executive Council by the Banaras Hindu
Statutes 1nay now be seen.
Statute No. 18 was
University
amended in 1958, and is referred to as amended. It Hidayatullah 1.
laid down:
" 18(1). The Executive Council shall, subject to
the control of the Visitor, have the management and
administration of the whole revenue and property
of the University and the conduct of all administrative affairs of the University.
(2) Subject to the provisions of the Act. the Statutes
and the Ordinances, the Executive Council shall, in
addition to all other powers vested in. it, have the
following powers, namely :
(i) To appoint~ from time to time, ... Principals of
Colleges and institutions established by the University, and such Professors, Readers, Lecturers and
other members of the teaching staff, as may be necessary, on the recommendation of Selection Committees
constituted for the purpose:
(Proviso omitted)
(ii) to appoint members of the administrative
staff or to delegate the power of appointment to such
authority or authorities, or officers as the Executive
Council may, from time to time, by resolution, either
gener~lly or specially direct; ... "
.
The power of appointment was thus conferred by the
Statutes on the Executive Council.
We now turn to the Ordinances, where the discipli·
nary rules are to be found.
On October 13, 1958, the
Executive Council by Resolution No. 181 reconstituted
the material Ordinance. Chapter III in part I of the
Banaras ,Hindu lTniversity Calendar (1958) contains
the terms of appointment, grades, salary and condi ..
tions of service of teachers, officers a.nd other employees ·
of the University. That Chapter is divided into many
-#)actions and sub~sections. Section 5 deals with teaching
and administrative posts, and s. 6, with the condition~
398
SUPREME COURT REPORTS
(1961]
1 961
of service and terms of appointment. Ordinance No. 2
D 'Ah_l_b
1 1in this section lays down :
r.
,sLat <lr .a
~.
•
f h
ff 1 11 b
v.
"The conditwns of serviCe o t e sta s 1a
e
Vicc-Ch!Mce.'lor,
embodied in the Agreement Form of service. Every
Banara> l!i11du
employee shall on confirmation sign the agreement
llntl'elsll)'
F
"
orm.
Hidayatuilali .f. Ordinance No. 6, before its amendment, read:
"The Executive Council shall be entitled to terlllinate the engagement of an employee (i) on grounds
of misconduct and {ii) physical unfitness for good
cause and after calling for and consideriQg his
explanation and after giving four months' notice in
writing or payment of four months' salary in lieu of
notice."
The Ordinance was unhappily worded. The expression "physical unfitness for good cause" hardly mal\es
sense. l\fore difficulty arises Ly the use of the conjunction "andH. That wortl used for the first tiine in
the Ordinance iH obviously used disjunctively; but on
tho ~econcl and third time it is used conjunctively,
introducing ·two conditions precedent. So far, there is
no dispute, though much h!ld drafting. Dispute arises
oYer the last use of the conjuncti:Jn "and" in the
Ordinance. The appellants contend that it must be
reacl conjunctively as introducing a third condition
precedent, while the University urges that it is a separate power of termination unconnected with the others.
The High Court was persuaded to read the clause as
interpreted by the University and; in our opinion,
rightly.
In 1958, the Executive Council re-framed this Ordinance but surprisingly enough, without any better
success. The re-enacted Ordinance, as printed in the
amendment slip, read:
" 6.
The Executive Council shall be entitled to
terminate the engagement of an employee for
(i) misconduct, or
(ii) physical unfitness, or
{iii) inefficiency, or
(iv) breach on his part of one or more of the
tertns of his agreement with tho University, after
i ' r f
'
3 S.C.R.
SUPREME COURT REPORTS
399
calling for and considering his explanation in each
rg6r
of the ca!3es mentioned above; or
Dr. Akshaibar Lal
(v) after giving four months' notice or payment
v.
of four months' salary in lieu thereof."
Vice·Chancellor,
The dispute this time arises from the careless use of Banaras Hindu
the word Hor".
The Ordinance mentions four reasons
University
for termination of services, which are numbered (i) Hidayattdlah f.
to (iv). In each of t~ose cases, there is the condition
precedent that explanation must be called for and
considered. So far, the meaning is clear, even though
the drafting is far from comtnendable. Then follow a
semi-colon and "or" and number (v). The word "or"
does not seek to create an option between calling for
and considering an explanation and a four months'
notice, etc. The number ( v) and the semi-colon between "mentioned above ,, and "or" do not permit
this reading. Tl!.e difficulty, however, does not end
there. If we read the fifth clause as connected independently with the opening words, we get this:
"The Executive Council shall be entitled to
tern1inate the engagement of an employee for
.........................................................................
(v) after giving four months' notice4 .............. ";
which makes the word "for" superfluous in the
sentence.
In our opinion, the sense of the Ordinance can be
obtained by rearranging the matter thus:
"6. The Executive Council shall be entitled to
terminate the engagement of an employeefor (i) misconduct, or
(ii) physwal unfitness, or
(iii) inefficiency, or
(iv) breach on his part of one or more of the terms
of his agreement with the University,
after calling for and considering his explanation
in each of the cases mentioned above;
or (v) after giving four months' notice or payment
of four months' salary in lieu thereof. "
This means that., if action is taken under cis. (i) to (iv),
an opportunity of showing cause against the termination of the service must be given; hut. action can also
be taken to t~rminate the service, without .a.$signing a
400
SUPR.EME COURT REPORTS
[1961]
I96I
cause, on four months' notice or four months' salary
D
A
:r.. h .b
L 1 in lieu of notice.
The case of the University is that
r.
rrs at ar
a
.
v.
all these orders of termination of service were passed
Vice-Chancellor. under the power granted by cl. (v) of this Ordinance,
Banaras Hindu modified by the terms of the agreements as they existed.
University
The result of this analysis shows that the power of
Hidayatullah .f. the University to terminate the services of the incum ..
bents was derived from (a) agreements, (b) Ordinances,
and (c) Statute No. 30. The agreements merely represented the general right of a master to terminate the
services of incuJnbents, where they were subject to
agreements, after reasonable notice, without giving
any reason. The Ordinances, in addition to preserving
that right, gave power to terminate service for proved
misconduct, inefficiency or physical unfitness.
These
powers, unless used according to the stated conditions,
were unexercisable, and in the case of a service which
was protected against arbitrary action, being permanent, could only be invoked in an appropriate instance.
In those cases which would fall within the categories
of proved rnisconduct, inefficiency and physical unfitness, the University was required to take action in
accordance with the Ordinance and the Rules.
This was the position before the new Statute No. 30
was added by Parliament. This legislative measure
was undertaken as the result of the sorry state of
affairs of the University, and a special ground was
required to be proved. It was that the continuance of
an incumbent was detrimental to the interests of the
University. The power to terminate the services of
an incumbent on this ground was hedged in with
appropriate safeguards, due to the struggle for power
which it is saidt had arisen in the University in the
past;
and though . the Mudaliar Committee had
suggested a Screening Committee to go into the cases
of all teachers, Parliament thought it necessary that
before any case reached the Screening Committee {renamed the Reviewing Committee) it should be scruti~
nised by the Solicitor-General. The procedure which
the new Statute enacted, ensured fairplay and proper
scrutiny. First, the Executive Council had to resolve
that the continuance in office of any particular person
I
I
3 S.C.R.
SUPREME COURT REPORTS
401
was detrimental to the interests of the University.
196r
The reasons for such belief had to be recorded briefly D
Akshaibar Lal
and the Resolution together with the connected papers '·
v.
had to be sent to the Solicitor-General. In the case of Vice-Chancellor,
a teacher who was a men1ber of the Executive Council, Banaras Hindu
the Executive Council was not to consider the allega~
University
tions but to send the papers to the Solicitor-General. Hidayatullah J.
The Solicitor-General had to decide if there was a
prima facie case for enquiry, and then he was to refer
suitable cases to the Reviewing Committee.
The
Reviewing Committee was then to enquire into the
matter, and forward· its recommendations to the
Executive Council. The Executive Council was thereafter required to proceed under cl. (6), which was as
follows:
"Before taking any action against any person on
the recommendations of the Reviewing Corn mit tee,
the Executive Council 8hall give him a reasonable
opportunity of being heard. "
The power of the Executive Council was conferred by
cl. 5, which provided :
·
"On receipt of the recommendations of the
Reviewing Committee, the Executive Council shall
take such action thereon as it may think fit.,
The procedure laid down in Statute No. 30 was
followed by the University. The cases- of the appellants went before the Solicitor-General and then before
the Reviewing Committee. In seven ca,ses out, of eight,
the Reviewing Committee gave its opinion. In four
out of seven cases, a show-cause notice was issued
under cl. 6 but not in others; and the four appellants
(Group I) al~o showed cause. They also obtained a
stay from the High Court of Allahabad against action
under Statute No. 30, and the Executive Council
decided to postpone consideration of their cases. But
the Executive Council abandoned action under Statute
No. 30, and proceeded to act under pbwers which, it
thought, flowed from the agreements and the Ordinances, and terminated the services of the eight
appellants, giving four or si~ months' salary in lieu of
notice.
·
51
402
SUPREl\tlE COURT REPORTS
[1961]
z96z
In so far as the power of terminating services with ..
Dr Ak h .b
L 1 out notice was concerned, the general power could not
•
s v:' ar a be invoked, when allegations of conduct detrimental
Vice..Chancellor, to the interests of the University had already been
Banaras Hindu made and scrutinised by the Solicitor~General and the
Univet-sity
Reviewing Committee and the matter was pending
before the Executive Council. The powers granted by
Hidaya#ullah ].
h O d
b
h
S
t e
r inances are expressly su ject to t e
tatutes,
and the Ordinances cannot prevail over the Statutes.
Statute No. 30 provided for special action in special
circumstances. The existence of t.he special circumstances is expressly admitted, inasmuch as the cases
were referred to the Reviewing Committee. The existence of the special circumRtances and the special
remedy excluded the right of the University to invoke
its general powers, not to start with, but after the
special procedure had been deliberatP]y adopted and
had commenced. If the cases of these appellants had
not been sent to the Solicitor-General and the Reviewe
ing Committee at all, other considerations might have
arisen. The question is whether after the special
procedure was once invoked, it could be dropped in
the middle and other powers exercised.
The University relies on three arguments in this
connection. It is first contended that the powers of
the University were cumulative, and that the University could resort to any of the remedies op,en to it.
Reliance is placed in support of this argument on
Shankar Sakai v. Din Dial (I) (observations of 1\lahe
mood, J., at p. 418), Om Prakash Gupta v. State of
U. P. (9), The State of Madhya Pradesh v. Veereshwar
Rao Agnihotry (3), Brockwell v. Bullock('), _ Seward v.
" Vera Cruz'' (5) and Barker v. Edger (6). It is not
necessary to refer to these cases in detail. It has been
laid down recently by this Court that, where the law
allows alternative remedies, one or the other or both
ca.n be invoked unless one remedy is expressly or by
necessary implication excluded by the other (See State
(I) (z88g) I.L.R. 12 All. 409.
(:a) [r957] S.C.R. of-23·
(5) [1957] S.C.R. 868,
(4) (1889) 22 Q.B.D. 567.
(.5} (1884) IO A.C. 59·
(6) (18g8] A.C. 748 (P.C.).
'
3 S.C.R.
SUPREME COURT REPORTS
403
of Kerala'v. G. M. Francis and Go. (1) ).
The question
1961
thus is whether there is anything expressly stated by
.b
L 1
I
I
I
.
1. d
h" h
ld
l d
D,-. Akslun ar
a
aw or c ear y 1mp te
w tc wou
exc u e powers
under the agre_ements and the Ordinances, when a.ction
vice-cZ~ncellor,
has been taken under the Statutes. The University Banaras Hindu
Act expressly makes the Ordinances subject to the
University
Statutes, and in case of any clash Let ween them, the
Ordinancet> rnust be made to stand down. Further, Hidayatullah J.
Statute No. 30 was enacted by Parliament to meet a
special situation, and contained a code for dealing
with certain special kinds of cases. To that extent,
the implication is not only one way, but is also clear.
The University could not, having started enquiries
under Statute No. 30, abandon the enquiries in midcourse and pass on to something else. This is illustrated by the contradictory Resolutions passed on the
same day. In the case of the four appellants belonging
to Group I, action under Statute No. 30 was deferred
till after the decision of the High Court. But one is
tempted to ask what possjble further action was contemplated when their services were terminated the
same day. It Inay be pointed out here that dropping
of action under Statute No. 30 deprived the appellants
of the right to show cause against what had been
alleged against them or found by the Reviewing
Committee.
The appellants characterised the whole action as
lacking in bona fides. The action can only be questioned
if it is ultra vires, and proof of alien or irrelevant motive
is only an exam pie of the ultra ·viTes character of the
~ction, as observed by Warrington, L.J., in the followIng passage :
"My view then is that only case in which the
Court can interfere with an act of a public body
which is, on the face of it, regular and within its
powers, is when it is proved to be in fact ultra vires,
and that the references in the judgments in the
several cases cited in argument to bad faith, corruption, alien and irrelevant motives, collateral and
indirect objects, and so forth, are merely intended
when properly understood as examples of matters
(I) [Ig6I] 3 S.C.R. I8I.
Dr.