JUDGMENT M. Katju, J.
1. This writ petition has been filed against the impugned order dated 7.8,2000 and 20/22.5.2000 passed by the Vice-Chancellor and Registrar of Banaras Hindu University, Varanasi. .
2. Heard learned counsel for the parties.
3. The petitioner was appointed as Lecturer in Ophthalmology, Institute of Medical Sciences, Banaras Hindu University, Varanasi on 31.12.1984. Thereafter he was selected and appointed as Reader and he Joined on the post on 5.5.1993. It is alleged in paragraph 5 that his work and conduct has been satisfactory. The petitioner's wife Dr. (Smt.) Neelam Mittal is also working as Senior Lecturer in Dental Surgery in the Institute of Medical Sciences in the same University since April, 1989 and her work is also satisfactory.
4. It is alleged in paragraph 8 of the petition that the petitioner's wife was awarded a . Commonwealth Fellowship in United Kingdom with effect from 1.3.2000 to 28.2.2000. For this purpose she applied for leave which was granted to her vide order dated 28.2.2000. It is alleged in paragraph 9 of the petition that the petitioner also decided to accompany his wife and also desired to attend the Retina meeting from 7th to 9th April, 2000 at Frankfurt, Germany as well as the Annual Congress of Royal College of Ophthalmology at Harrowgate, United Kingdom from 23rd to 24th May, 2000. For this purpose he applied for leave vide application dated 19.2.2000 as stated in paragraph 10 of the writ petition. The said application was recommended and forwarded by the Head of the department of Ophthalmology as well as by the Director of the Institute of Medical Sciences, Banaras Hindu University, to the Registrar of the University. It is alleged in paragraph 14 of the petition that in view of these recommendations, the petitioner had a bona fide belief that the leave applied for will be granted to him and as such he proceeded on leave on 29.2.2000. However, the Registrar of the University communicated to the petitioner the order of the Vice-Chancellor dated 23.3.2000 asking the petitioner to join duties immediately and further asking him to show cause as to why action be not taken against him for misconduct. The petitioner sent a detailed reply vide letter dated 12.4.2000. However, the Registrar of the University issued another office memorandum dated 18.4.2000 containing the order of the Vice-Chancellor of the same date. On returning to India, the petitioner submitted his joining report to the Registrar dated 21.6.2000.
5. The Registrar by a letter dated 24.6.2000 Annexure-1 to the petition intimated the petitioner that the Vice-Chancellor by his order dated 20.5.2000 held that the service of the petitioner stood abandoned with effect from 1.3.2000. A true copy of the order of the Vice-Chancellor dated 20.5.2000 is Annexure-2 to the writ petition. It is alleged in paragraph 21 of the petition that the appointing and dismissing authority of the petitioner is the Executive Council of the University and not the Vice-Chancellor. Aggrieved the petitioner filed a Writ Petition No. 29741 of 2000, which was disposed of by a Division Bench of this Court on 14.7.2000. The order is quoted in paragraph 24 of the petition. By this order the petitioner was permitted to move a representation before the Vice-Chancellor. Consequently, the petitioner made a representation dated 21.7.2000 praying that the order dated 20/22.5.2000 be recalled. However, the respondent No. 1 by his order dated 7.8.2000 has observed that the petitioner's service stood abandoned vide Annexure-3 to the petition.
6. In paragraph 28 of the petition it is stated that the Executive Council has passed a resolution providing that employees who have gone abroad without permission/sanction of leave by the Vice-Chancellor and employees having overstayed without permission for not more than 45 days for the first time would be issued a warning vide Annexure-4 to the writ petition. The same resolution also states that employees who have gone abroad without permission/sanction of the leave by the Vice-Chancellor for more than 45 days from the date of issue of notice by the University will be deemed to have abandoned their service. The petitioner filed a fresh Writ Petition No. 37389 of 2000 which was dismissed on the ground of an alternative remedy on 15.2.2001. Accordingly, the petitioner made a representation dated 15.3.2001 before the Executive Council but the matter was not included in the Agenda in the meeting of the Executive Council and hence the petitioner was compelled to file another Writ Petition No, 27654 of 2001 in which the Division Bench by order dated 27.7.2001 directed the Executive Council to decide the representation preferably within two months, The petitioner made a fresh representation dated 8.8.2001 to the Registrar and the Secretary of the Executive Council for early disposal of his representation dated 15.3.2001. True copy of the representation dated 8.8.2001 is Annexure-7 to the writ petition. It is submitted in paragraph 40 of the petition that the term of the Executive Council has expired and hence there is no efficacious alternative remedy, hence this writ petition,
7. The University has filed a counter-affidavit and we have perused the same. In paragraph 5 of the same it is stated that the petitioner was found guilty of leaving the University without prior approval of the University authorities. In paragraph 21 of the same it is stated that the petitioner was informed through a Fax message dated 3.5.2000 sent to his residence at London as well as to his Varanasi address and the address of his father at Ghazlabad regarding the decision of the University that in case he fails to resume duties within the stipulated period, he will be deemed to have abandoned his job. In paragraph 25 it is stated that opportunity of hearing was given to the petitioner by the Vice-Chancellor on 1.8.2000.
8. A rejoinder-affidavit has also been filed and we have perused the same.
9. In the supplementary counter-affidavit filed by the respondents it has been stated that the petitioner's representation could not be considered by the Executive Council as other matters in the Agenda had to be considered. The term of the Executive Council expired on 16.8.2001. The petitioner's representation dated 15.3.2001 was considered in the meeting of the Executive Council held on 8th and 9th January, 2003 vide Annexure-S.A. 1 to the affidavit. However, no decision was taken on the same and the matter was adjourned to the last week of March, 2003 as stated in paragraphs 6 and 7 to the supplementary counter-affidavit.
10. In the supplementary rejoinder-affidavit it has been stated that the respondents have taken almost two years but have not yet decided the petitioner's representation dated 15.3.2001.
11. In our opinion, the punishment given to the petitioner is disproportionate to the offence and hence the impugned orders are illegal. The petitioner had applied for leave from 1.3.2000 to 30.4.2000, i.e., for two months. From 1.5.2000 to 9.6.2000 there were summer vacations in the University. The petitioner claimed that he was entitled to compensatory leave from 10.6.2000 to 21.6.2000 when he reported for duty. Thus on the facts of the case at most, the petitioner was absent from work for two months and eleven days, i.e., for about 71 days. However, even if we include the summer vacations, it means that the petitioner was absent from 1.3.2000 to 21.6.2000.
12. It is settled law that the punishment should be proportionate to the offence vide U.P.S.R.T.C. v. M. K. Mishra, 2000 (2) AWC 1475 (SC) : 2000 (3) SCC 450. The petitioner under bona fide belief thinking that his leave would be granted proceeded with his wife to London on 25.2.2000 and he stayed there only for two or three months. This is not a case where a teacher has gone abroad for several years. Hence to deprive a person of his job in this case is too harsh a punishment for such an offence. Moreover, automatic cessation of offence without opportunity of hearing has been held to be illegal vide U. P. S. R. T. C. v. M. K. Misra. 2000 (2) AWC 1475 (SC) : JT 2000 (8) SC 172 ; Mirza Barkat Ali v. I. G. Police, 2000 (2) AWC 1475 ; 2002 (3) ESC 256 ; AIR 1994 SC 215 ; 1998 (3) SCC 192. In Scooters India Ltd. v. M. Mohd. Yaqub. 2001 (1) AWC 334 (SC) : 2000 ALJ 3040, it was held that overstaying without leave cannot result in automatic termination of service, and the standing order providing for such automatic termination is illegal.
13. As regard the decision of the Supreme Court in A. M. V. v. Mansoor Ali Khan, 2000 (4) AWC 2993 (SC) : 2000 (7) SCC 529, the said decision is distinguishable because in that case the respondent was sanctioned leave for two years which was extended for another one year but still he did not join. In the present case, the petitioner was absent from the University only for about 2 or 3 months and not for several years. In Uptron India Ltd. v. Shammi Bhan, JT 1998 (3) SC 47, it was held that the service of a permanent employee cannot be terminated merely by giving a requisite notice, even if there is a stipulation in the contract of service or standing orders to that effect.
14. In view of the above, we are clearly of the opinion that the University has acted arbitrarily and imposed a punishment disproportionate to the offence. No doubt the petitioner did commit misconduct by proceeding on leave without sanction of leave but this was not so grave and serious a misconduct as to deserve termination of service.
15. Ordinarily, we would have remanded the case to the University to reconsider the quantum of punishment but since a long time has elapsed in order to avoid further delay in the matter, we ourselves are imposing the punishment as is permissible in view of the Supreme Court decision in B. C. Chaturvedi v. Union of India, 1995 (6) SCC 749. We, therefore, set aside the impugned orders and direct that the petitioner shall be reinstated in service within a month from the date of production of a certified copy of this order before the Vice-Chancellor of Banaras Hindu University, Varanasl and shall be given continuity of service, but shall not be given back salary.
16. The petition is allowed.