JUDGMENT R.K. Agrawal, J.
1. Since both these writ petitions relate to the same petitioner, they are being heard and decided by a common judgment.
2. Civil Misc. Writ Petition No. 42712 of 2000 has been filed by Shyam Dev seeking a writ, order or direction in the nature of certiorari quashing the order dated 23rd August, 2000, passed by the Vice Chancellor, Banaras Hindu University. Varanasi, respondent No. 1 filed as Annexure-7 to the writ petition and other consequential reliefs whereas Civil Misc. Writ Petition No. 24021 of 2003 has been filed by the same petitioner seeking a writ. order or direction in the nature of certiorari quashing the notice issued by the Vice Chancellor. Banaras Hindu University, Varanasi and the Registrar, Banaras Hindu University. Varanasi, respondent Nos. 2 and 3, respectively, which, according to the petitioner, has not been served upon him. Vide order dated 23rd August, 2000, the Vice Chancellor had terminated the services of the petitioner on the ground of proved charges of misconduct and indiscipline. By the notice sought to be quashed in Civil Misc. Writ Petition No. 24021 of 2003, it is alleged by the petitioner that he is being evicted from the premises allotted to him.
3. Briefly stated, the facts giving rise to the present writ petitions are as follows :
"According to the petitioner, he was appointed as a class IV employee on 24th September, 1971 in the Banaras Hindu University (hereinafter referred to as "the University"), At the time when the termination order was passed, he was working as Block servant in Vivekanand Hostel. He was elected as Secretary of the non-teaching employees association in the year 1993 and thereafter President of the association in the year 1994. According to the petitioner, in the year 1998, a show cause notice was issued to him for certain charges, disciplinary proceedings were initiated and enquiry was held. Vide order dated 25th May 1998. punishment was awarded whereunder his two increments were stopped. The aforesaid order was accepted by the petitioner as he did not challenge it any further. Again in the year 1999. certain demands were raised by the non-teaching employees of the University in which the petitioner took keen interest. The matter was compromised under the signature of the Registrar of the University on 15th September. 1999 and it was decided that the employees shall not be victimized. No action was taken pursuant to the show cause notice dated 13th February, 1999, issued to him. Thereafter, an office memo was issued on 20/22nd January, 2000. by which the petitioner was asked to give reply. The petitioner submitted his reply on 31st January. 2000. According to the petitioner, no action was taken against him pursuant to the aforesaid office memo. However, after about 5 months, the petitioner was given another office memo dated 7/8th June, 2000, in which certain charges were levelled. He was asked to submit his reply. The petitioner, vide application dated 19th June, 2000. prayed for two weeks' time for submitting his reply and he submitted his reply on 19th July. 2000. It is alleged by the petitioner that without holding any enquiry and without considering his reply, the Vice Chancellor, vide order dated 23rd August, 2000, has removed the petitioner from service. The order dated 23rd August, 2000, is under challenge before this Court in the aforementioned writ petition."
4. Vide order dated 29th September, 2000, this Court had stayed the effect and operation of the order dated 23rd August, 2000 and observed that the petitioner shall be continued in service and shall be paid his salary. When the order dated 29th September, 2000, was served by the petitioner on the Vice Chancellor and the Registrar of the University, which they did not comply, thus, forcing the petitioner to file Civil Misc. Contempt Petition No. 659 of 2001 in which notices were issued to Dr. Y. C. Simhadri on 24th March, 2003. According to the petitioner, when the Vice Chancellor and the Registrar of the University came to know about notice having been issued to the Vice Chancellor in the contempt petition, they started pressurizing the petitioner to vacate the premises allotted to him in lieu of his service. The action of the University, thus, in adopting coercive measure for evicting the petitioner from the premises allotted to him. Is under challenge in Civil Misc. Writ Petition No. 24021 of 2003.
5. It appears that after the term of the Prof. Y. C. Simhadri on the post of the Vice Chancellor expired and a new Vice Chancellor took over on 22nd February, 2002. the petitioner moved a mercy appeal on 7th September, 2002. The said appeal was directed by the Vice Chancellor to be placed before the Executive Council which rejected the appeal. The resolution of the Executive Council was communicated by the Deputy Registrar vide letter dated 26.4.2003 to the petitioner.
6. It may be mentioned here that on 10th September, 2003, when the matter was taken up by the Court, after perusing the order of termination the Court was of the opinion that a sympathetic view should be taken by the authorities. Instead of passing a Judicial order, the Court directed Sri V. K. Upadhyaya, learned counsel, to communicate the feeling of the Court to the Vide Chancellor as to whether he is prepared to reconsider the matter or not. After this order was passed in Civil Misc. Writ Petition No. 24021 of 2003, the Executive Council in its meeting held on 21/23rd December, 2003, resolved that the orders of the Vice Chancellor vide letter dated 23rd August, 2000 and approved by the Executive Council in its meeting held on 8/9th January, 2001, needs no reconsideratlon and is reiterated. While doing so he took into account the past conduct of the petitioner.
7. I have heard Mrs. Manju R, Chauhan, the learned counsel for the petitioner and Sri Vinod K. Upadhyaya, the learned counsel appearing for the University, in both the writ petitions.
8. The learned counsel for the petitioner submitted that the petitioner is a confirmed class IV employee in the University and his services cannot be terminated without holding a proper enquiry. According to her, only an office memo dated 7/8th June, 2000, calling upon the petitioner to show cause as to why disciplinary proceeding be not initiated against him, was issued to the petitioner to which he had submitted a reply. No enquiry was held as provided in the Statutes of the University. Thus, the said order is bad for non-compliance of the principles of natural justice as also violative of the statutory provisions. According to her, even in the year, 1998, when a minor punishment was awarded to the petitioner, then an enquiry was held whereas in the present case when a major punishment has been awarded, no enquiry has been held nor the same has been dispensed with. Thus, the order is liable to be set aside as the petitioner has suffered prejudice. In any event, she submitted that the charges levelled against the petitioner in the office memo dated 7/8th June, 2000, are too trivial in nature so as to warrant imposition of extreme penalty of termination from service. The punishment is highly disproportionate to the nature of the charges and is, therefore, liable to be set aside. Smt. Chauhan relied upon a decision of the Hon'ble Supreme Court in the case of Ved Prakash Gupta v. M/s. Delton Cable India (P.) Ltd., AIR 1984 SC 914.
9. Sri Vinod K. Upadhyaya, learned counsel for the University, submitted that the petitioner had abused the Vice Chancellor and had been regularly indulging in the acts of gross indiscipline and, therefore, he was issued an office memo. He submitted that in the office memo dated 7/8th June, 2000, various acts of indiscipline committed by the petitioner during the years 1987 to 1999 were mentioned and be was asked to show cause as to why disciplinary proceedings be not initiated. The explanation submitted by the petitioner was not found proper and, therefore, the Vice Chancellor was well within his right to take disciplinary proceedings and terminate the services of the petitioner. According to him. looking to the past conduct and the acts of indiscipline committed by the petitioner, he should not be shown any indulgence by this Court in exercise of equity jurisdiction under Article 226 of the Constitution of India, Sri Upadhyaya relied upon the following decisions :
(i) State of Mysore v. K. Manche Gowda, AIR 1964 SC 506 ;
(ii) State of Assam and Anr. v. Mahendra Kumar Das and Ors., AIR 1970 SC 1255 ;
(iii) Union of India and Anr. v. G. Ganayutham (Dead) by L.Rs., AIR 1997 SC 3387 ;
(iv) Om Kumar and Ors. v. Union of India, (2001) 2 SCC 386 ; and
(v) Director General R.P.F. v. Ch. Sai Babu, 2003 (2) AWC 986 (SC) : JT 2003 (1) SC 557.
10. Having heard the learned counsel for the parties. I find that in the office memo dated 7/8th June, 2000, after narrating the various deeds of indiscipline/misconduct said to have been committed by the petitioner during the period 1987-1999, the petitioner was asked to show cause as to why disciplinary proceedings be not initiated against him. The relevant portion of - the aforementioned office memo is reproduced below :
"Aur yehki Sri Shyamdev uprokta ke varsh 1987 se 1999 tak ke is vishwavidyalaya me kiye gaye, kriyakalapo evam duracharano se sambandhit akhya Jaisa ki uper uarnit hai evam uske angreji rupantar ka aviokan karne se yeh spast hua hai ki Sri Shymadev uprokta ne vishwavidyalayiya karyo ke avhelna ki hai evam aise karya barabar karte rahe hai jo vishwavidyalaya ke adhiniyamo evam niyamo ke tahat ek karmachari ko nahi kama chahiye. Is prakar Sri Shyamdev uprokta ne vishwavidyalayiya gair shikshan karamchari sewa sharto ke conduct Rule 2.1 ka lagatar khula ullanghan kiya hai avam unke viruddh anushasanatmak karyawahi ka arop pramanit hota hai.
Atah Kulpati Kashi Hindu Vishwavidyalaya ke adeshanusar main K. M. Pandey, Kulpatt. Kashi Hindu Vishwavidyalaya. ataddwara Sri Shyamdeu ko yeh suchit karta boon ki weh yeh spast kare ki kyo na unke viruddh anushashnik karyawahi ki jaye. Unko is sambandh me yeh nirdesh diya Jata hai ki is patra ke prapti ke upranta dinank 19 June, 2000 tak spast roop se apne bachav me unhe Jo kuchh kahna ho use adhohastaksharkarta ko likhit roop me de anyatha yeh manya hoga ki unhe apne bachav me kuchh bhi nahi kahna hai aur tadnusar unke uiruddh ek pakshiya karyawahi kijayegi."
11. The petitioner had submitted his reply. The Vice Chancellor after considering the reply, by the impugned order dated 23rd August, 2000, has straightaway terminated the services of the petitioner with immediate effect. The relevant portion of the order is reproduced below :
"Aur yeh ki kulsachiv, Ka Hi.vi.vi. dwara hastaksharit karyalayiya gyapan sankhya A.B./19-C/W/ 12/GA.SHI. 1 /9320 Dinank 7.7.2000 dwara uprokta Sri Shyamdev Kaksh sewak ko Vishwavidylaya Gair Shikshan Karmachari Sewa Sart Adhiniyam 2.1 ki Angreji aur Hindi ruiantaran ki ek prati sanlagn karte hue yeh kaha gaya ki unhe apne bachav me Jo kuchh kahna ho use likhtt roop se dinank 19.7.2000 tak avashya prastut kare anyatha vishwavidyalayiya prashasan tadnusar unke viruddh ek pakshiya karyawahi karne ko baddhya hoga.
Aur yeh ki uprokta Sri Shyamdev ne apne patra dinank 18.7.2000 Jo ki Kulsachiv karyalaya prashasan me dinank 19.7.2000 ko prapta hua dwara uprokta sandarbhit gyapan dinank 7/8 June. 2000 ka uttar diya.
Aur yeh ki Sri Shyamdev ke uprotra uttar ke angrezt anuvad ko Kulpati ka. hi. vi. vi. dwara Sawdhanipurvak gun euam dosh ke adhar per vistarpurvak vichar kiya gaya aur yeh paya gaya ki uprokta Sri Shyamdev ka uttar asantoshJanak hai. Tadnusar Kulpati Ka.Hi.Vi.Vi. ne yeh adesh parit kiya hai ki uprokta Sri Shyamdev ki sewayen is vishwavidyalaya se Tatkalik prabhav se samapt kar diJawe.
Atev Sri Shyamdev putra Sri Kuldeep Yadav kaksh sewak Vivekanand Kshatrawas Niwasi karmachari quarter No. 2, Limbdi Kshtrawas ke pas Ka.Hi.Vi.Vi.Ki sewayen is vishwavidyalaya se tatkalik prabhav se samapt kiJati hai."
12. In the order dated 23rd August, 2000, the Vice Chancellor has mentioned that in respect of the charges levelled against him by the office memo dated 9th June, 1987, an enquiry committee was constituted and the enquiry was held and after the charges were found to be proved, the petitioner was given a minor punishment of stoppage of two increments but in the present case I find that when major punishment of termination of service is being passed, there 18 no mention about any enquiry having been held by the University authorities. Simply, a show cause notice was issued levelling, certain charges which the petitioner explained and denied of being guilty of any misconduct in his reply. This was only with respect to the initiation of the disciplinary proceedings and it cannot be termed to be an enquiry at all. It is not in dispute that the petitioner is a permanent class IVth employee in the University. In fact, in paragraph 5 of the counter-affidavit filed by V. S. Vidyarthi, Senior Clerk in the office of the Registrar, Banaras Hindu University, Varanasi, it has been specifically stated that the petitioner is a permanent employee of the University.
13. Clauses (1) and (2) of the Statute 32 of the Banaras Hindu University reads as under :
"32. Removal of employees other than teachers.-( 1 ) Notwithstanding anything contained in the terms of his contract of service or of his appointment, an employee of the University, other than a teacher, may be removed by the authority which is competent to appoint the employee :
(a) if he is of unsound mind or is a deaf-mute or suffers from contagious leprosy ;
(b) if he is an undischarged insolvent ;
(c) If he has been convicted by a court of law of an offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months ;
(d) if he is otherwise guilty of misconduct :
Provided that no officer of the University shall be removed from his office unless a resolution to that effect is passed by the Executive Council by a majority of two-thirds of its members present and voting.
(2) No such employee shall be removed under Clause (1) until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
14. Thus, from the reading of the aforesaid statute it is seen that before removal of an employee who is guilty of misconduct, he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. In the present case, the petitioner was not given any show cause notice as to why he should not be removed from service and, therefore, the mandatory provisions of Statute 32 have been violated.
15. Admittedly, in the present case no enquiry was held and, therefore, the order of termination passed by the Vice Chancellor is patently illegal, contrary to the Statutes by which it is bound and also against the principles of equity, fair play and natural Justice and is liable to be set aside. Even otherwise, from a reading of the impugned order dated 23rd August, 2000, passed by the Vice Chancellor it is seen that the Vice-Chancellor except recording the conclusion that the explanation submitted by the petitioner is unsatisfactory, no reason has been given and the respondents have not brought on record nor placed any other order before the Court.
16. So far the question of punishment being disproportionate regard being had to the charges framed against the petitioner is concerned, it may be mentioned here that the Hon'ble Supreme Court in the case of Ved Prakash Gupta (supra) while considering the fact about abusing officers in filthy language, was of the opinion that no responsible employer would ever impose in like circumstances the punishment of dismissal to the employee and that victimization or unfair labour practice could well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of abuse of some worker or officers of the management by the appellant within the premises of the factory. In the aforesaid case, however, there was nothing on record to show that any previous adverse remarks against, the workman had been taken into consideration for awarding the extreme penalty of dismissal from the service.
17. In the case of the State of Mysore (supra) the Hon'ble Supreme Court has held that if the proposed punishment is mainly based on previous record of the Government servant, the second notice to the Government servant must disclose this and if this is done, the punishing authority may take into consideration the previous record though the previous record is not made the subject matter of the charge at first stage.
18. In the case of State of Assam and another (supra), the Hon'ble Supreme Court has held that where the enquiry officer is not the disciplinary authority who is competent to impose punishment against the delinquent officer and the latter has independently gone into the evidence on record in respect of the charges against the officer and has come to an independent conclusion that the officer is guilty which is again considered independently and confirmed by the appellate authority no principle of natural justice can be said to have been violated.
19. In the case of Union of India v. G. Ganayutham (supra), the Hon'ble Supreme Court after considering the various decisions both of our country and of England, has summarized the current position of proportionality of punishment in disciplinary matter as follows :
"30. In Ranjit Thakur, AIR 1987 SC 2386, this Court interfered with the punishment only after coming to the conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on fact, Wednesbury and C.C.S.U. tests was satisfied. In another case, In B. C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1995 AIR SCW 4374. a three Judge Bench said the same thing as follows (Para 18 of AIR) :
"the High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusions on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal it would appropriately mould the relief, either by directing the disciplinary authority/ appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself in exceptional and rare case. Impose appropriate punishment with cogent reasons in support thereof."
Similar view was taken in Indian Oil Corporation v. Ashok Kumar Arora, 1997 (2) AWC 2.166 (SC) (NOC) : (1997) 3 SCC 72. that the Court will not intervene unless the punishment is wholly disproportionate.
31. In such a situation, unless the Court/Tribunal opines in its secondary role, that the administrator was, on the material before him. Irrational according to Wednesbury or C.C.S.U. norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B. C. Chaturvedi's case, 1995 AJR SCW 4374, that the Court might, to shorten litigation-think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. (In B. C. Chaturvedi and other cases referred to therein it has however been made clear that the power of this Court under Article 136 is different). For the reasons given above, the case cited for the respondent namely, State of Maharashtra v. M.H. Mazumdar, AIR 1988 SC 842, cannot be of any help."
20. In the case of Om Kumar (supra), the Hon'ble Supreme Court regarding proportionality of punishment in service law, has held as follows :
"67. But where an administrative action is challenged as "arbitrary" under Article 14 on the basis of Nagappa, (1974) 4 SCC 3 (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary, in G. C. Mahajan v. Jalgaon Municipal Council, (1991) 3 SCC 91 (SCC at p 111). Venkatachaliah, J. (as he then was) pointed out that "reasonableness" of the administrator under Article 14 in the contest of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular v. Union of India, (1994) 6 SCC 651 (SCC at pp 679-80) ; Indian Express Newspapers Bombay (P.) Ltd. v. Union of India, (1985) 1 SCC 641 (SCC at p 691) : Supreme Court Employees' Welfare Association v. Union of India, (1989) 4 SCC 187 and 17. P. Financial Corporation v. Gem Cap (India) (P.) Ltd., 1993 (2) AWC 1125 (SC) ; (SCC at p 207). while judging whether the administrative action is "arbitrary" under Article 14 [i.e., otherwise than being discriminatory), this Court has confined itself to a Wednesbury review always.
69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14.
70. In this context, we shall only refer to these cases. In Ranjit Tbakur v. Union of India, (1987) 4 SCC 611, this Court referred to "proportionality" in the quantum of punishment but the Court observed that the punishment was "shockingly" disproportionate to the misconduct proved. In B. C. Chaturvedi v. Union of India, this Court stated that the Court will not interfere unless the punishment awarded was one which shocked the conscience of the Court. Even .then., the Court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in above situations, the Court could award an alternative penalty. It was also so stated in Ganayutham, (1997) 7 SCC 463.
71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases in questioned as "arbitrary" under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment."
21. In the case of Director General R.P.F. (supra), the Hon'ble Supreme Court has held as follows :
"6. As it is evident from the order of the learned single Judge there has been no consideration of the facts and circumstances of the case including as to the nature of charges held proved against the respondent to say that penalty of removal from service imposed on the respondent was extreme, Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer. The learned single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. it is not that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely saying that it is shockingly disproportionate. Normally, the punishment imposed by disciplinary authority should not be disturbed by High Court or Tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including nature of charges proved against the post conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/ establishment in which the concerned delinquent person works."
22. From the aforesaid decisions, it is clear that where the Court comes to the conclusion that the punishment imposed is shockingly disproportionate to the charges levelled against the delinquent. It can only set aside the punishment and remit the matter before the authority to pass a fresh order. Reasons have to be recorded. Even the past conduct can be taken into consideration for imposing the extreme punishment and only in rare situation the Court could award an alternative penalty.
23. It is not necessary to go into the question as to whether the extreme penalty of termination of service is shockingly disproportionate to the charges levelled against the petitioner as the Court has come to the conclusion that the impugned order dated 23rd August, 2000, has been passed in gross violation of the principles of equity, fair play and natural justice as no enquiry was held by the disciplinary authority and the petitioner was not put to notice that his service could be terminated. He was only asked to show cause as to why disciplinary proceedings be not initiated. As the order dated 23rd August, 2000, terminating the services of the petitioner has been set aside and the petitioner is residing in the official accommodation allotted to him, he can only be evicted in accordance with law and not at the whims and fancy of the University authorities as our country is governed by the Rule of Law.
24. In view of the foregoing discussions, both the writ petitions succeed and are allowed. The impugned order dated 23rd August, 2000, is set aside.