V.N. Tripathi vs Panjab University

Rameshwar Singh Malik, J.—Plaintiff is in second appeal, against the judgment of reversal passed by the learned Additional District Judge, whereby judgment and decree of the learned trial Court, decreeing the suit of the plaintiff, were set aside and the suit of the plaintiff was ordered to be dismissed.

Briefly put, the facts of the case as noticed by the learned first appellant court in paras 2 and 3 of the impugned judgment, are that the plaintiff was appointed as a Lecturer in the applied Mathematics, department of Mathematics, Panjab University, Chandigarh, where he joined on 17.1.1974 against a regular post, in accordance with the provisions of the Panjab University Calender Vol. I, governing the appointments of Teachers. He was desirous of undertaking research and advance work in his own field. Since he had served the Panjab University for more than 6 years, he applied for the grant of Sabbatical leave on 7.6.1985 with effect from 1.9.1985 to February 1986, on full salary and from March 1, 1986 to April 30, 1986 on half pay salary as per University Regulations with permission to combine the said leave with the summer vacations in May/June, 1986 stating that Mosul University had granted him Air Travel and had agreed to issue him entry visa. The brief summary of the work, the scope of further work and the photo copy of a telegram to show that Mosul University had agreed to grant Air Travel and entry visa were also attached with the application. It was pointed out by him to defendant No. 2 that he wanted to proceed to Iraq on September 1, 1985, so that the decision regarding his leave may be taken. He made another application to defendant No. 2 on 19.6.1985 and copy of the letter received from the Head of the Department of Mechanical Engineering University of Mosul was also attached. The protracted correspondence ensued between him and the defendant University, but no final action was taken by the defendant University. It is alleged that his programme was time bound in the Mosul University which was clearly indicated by him in his application for grant of Sabbatical Leave and subsequent correspondence. Defendant University with mala fide intention to harass, humiliate and defame him was not taking any decision on the application. In the alternative, he had also made it clear that in case the defendant University does not decide to grant Sabbatical leave for any reason, he be treated on leave without salary, without prejudice to his right for Sabbatical Leave. Ultimately, he left for Iraq on 4.9.1985 before his leave was sanctioned in anticipation of defendant University''s approval. Republic of Iraq had issued Air Tickets at its cost and the programme was time bound, he had no other choice except to proceed to Iraq on the hope that the defendant University would take favourable decision. On 18.10.1985, he received letter from defendant University that it was recommended to the Senate that he be asked to resume duty on 27.11.1985, at the latest, failing which, his post held by him would stand declared vacant. This letter was replied to in detail by him on 2.11.1985. The Deputy Registrar, Panjab University conveyed the orders of the Vice Chancellor, defendant No. 2 to him vide order dated 19.9.1985, according to which, he was asked to resume his duty within one month, from the date of issuance of the letter, failing which the post of Lecturer in the University shall be liable to be declared vacant under Regulation 11.9 of Panjab University Calendar. It is further alleged that the defendants did not wait for the period given in the letter dated 19.9.1985 and placed the matter before the Syndicate, which was considered by it on 17.10.1985. The leave applied for was refused on the basis of the distorted picture placed before it. The Deputy Registrar, Panjab University vide letter dated 7.12.1985 addressed to him informed that in pursuance of the decision of the Senate, dated 27.10.1985 the post of Lecturer held by him in the department of mathematics stood declared vacant with effect from 28.11.1985. It is alleged that there was mala fide on the part of defendant No. 2 on the ground that no action was taken for about 3 months on his application for Sabbatical leave. Defendant No. 2 was nourishing grouse against him as he had filed a Civil Writ Petition No. 4587 of 1984 and then SLP No. 12081 of 1984 in the Hon''ble Supreme Court of India claiming the benefit of promotion scheme. He had made representation dated 8.8.1985 to the Vice Chancellor, Panjab University, through proper channel levelling serious allegations against defendant No. 2. Earlier extra ordinary leave without salary was granted to him from December, 1980 to June 1983, but it did not debar him from claiming Sabbatical leave. Defendant did not consider the certificate issued by Professor S.M.J. Ali, dated 23.9.1985. His post was declared vacant without affording reasonable opportunity of being heard without issuing show cause notice and without holding proper enquiry. It is against the principle of natural justice. In these circumstances, he assailed the decision of the defendant University.

On being put to notice, defendants filed written statement admitting qualifications of the plaintiff and the fact that he was appointed as Lecturer in the applied mathematics in accordance with the provisions of its (Panjab University) Calender, Vol. I. They admitted the fact that plaintiff had moved application for Sabbatical Leave. There was correspondence. From the correspondence, it became evident that, he wanted to go to Mosul University for teaching assignment and not for the purpose of Research or Advanced work. Sabbatical Leave could not be granted for this purpose. The fact that he wanted to go there for teaching is clear from the letter of professor S.M.J. Ali, head of mechanical Engineering, University of Mosul. The leave cannot be claimed as a matter of right. The condition laid down for sabbatical leave as per regulation 12.1 (C) was not fulfilled. Plaintiff did not supply the requisite information. He had already gone on extra ordinary leave to accept the post of Lecturer in the applied mathematics in the same University. The delay in deciding the application was due to the effect that he did not supply the required information in support of his application. He had no justification to proceed to Iraq on 4.9.1985 without getting his leave sanctioned before hand. There was no question of his going to Iraq in anticipation. Even his earlier extra ordinary leave allowed to him had expired on 3.2.1983. He had not resumed duty on the due date i.e. 4.2.1983. He was served with a notice to resume the duty, failing which the post of Lecturer held by him would be liable to be declared vacant. Before his post was declared vacant, he resumed duty on 1.7.1983. According to them, his absence was treated willful. Plaintiff had sent a Cablegram to it (University) on 7.9.1985. On receipt of it, (Panjab University) sent cablegram dated 18.9.1985 informing that permission to apply for paid assignment was not granted. It was followed by another letter dated 19.9.1985 with a copy to Professor S.M.J. Ali of Mosul University Iraq that he should resume his duty in the department of mathematics within one month, failing which the post held by him shall be liable to be declared vacant under Regulation 11.9. Inspite of this, he did not resume duties. Matter was placed before the Syndicate and thereafter with the Senate and that it was decided by the Syndicate as well as by the Senate that he be asked to resume his duties on 27.11.1985. This was conveyed to him vide letter dated 18.10.1985 and cablegram dated 29.10.1985 and confirmation of the cablegram dated 29.10.1985 by Registered Airmal post. He did not resume the duty on or before 27.11.1985. They denied that distorted picture was placed before the Syndicate and Senate. He had not gone to Mosul University for undertaking research or advanced work. They admitted that plaintiff had filed writ petition No. 4587 which was dismissed in limini. SLP No. 12081 of 1984 was also dismissed. According to them the allegations of the plaintiff that his post has been declared vacant in violation of the principles of natural justice or that it is contrary to mandatory regulation is without any basis. They denied the other averments.

On competition of pleadings of the parties, learned trial court framed the following issues:

"(1) Whether decision of the Panjab University dated 17.10.1985 and dated 27.10.1985 and the order dated 7.12.1985 declaring the post of the plaintiff in the Panjab University, Department of Mathematics, vacant w.e.f. 28.11.1985 is wrong, illegal and against the provisions of Panjab University Calendar, Vol. I and bad in law? OPP

(2) Relief."

In order to prove their respective stands taken, both parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff has proved his case. Accordingly, suit was decreed vide judgment and decree dated 22.2.1991. Feeling aggrieved, defendant-University filed its first appeal which came to be allowed by learned Additional District Judge, vide impugned judgment and decree dated 4.9.2002. Hence this second appeal, at the instance of the plaintiff.

Learned counsel for the plaintiff-appellant submits that defendant-respondent University violated the provisions of Regulation 11.9 of the Panjab University Calendar Vol. I which deals with the conditions of service. The post held by the appellant was illegally declared vacant without following the due procedure. Learned trial Court rightly decreed the suit of the plaintiff but the learned first appellate court fell in serious error of law, while setting aside the cogent findings recorded by the learned trial Court. In support of his contentions, learned counsel for the appellant relies on two judgments of this Court in Hindu College, Sonepat v. Sadhu Ram Saini; 1992(2) S.C.T. 603 and The Management of Modella Woollens Limited Vs. Presiding Officer, Labour Court and Another, He prays for setting aside the impugned judgment and decree, by allowing the present appeal.

Per contra, learned counsel for the respondent-University submits that the plaintiff-appellant proceeded to join foreign assignment without getting the leave sanctioned. Plaintiff had been duly informed even before he left the country that he would be proceeding to join foreign assignment at Mosul University, Iraq, at his own risk and responsibility. After rejecting the application of the appellant for Sabbatical leave, he was duly intimated and was asked to resume his duty. Appellant chose not to resume his duty for the reasons best known to him. In such a situation, competent authority was left with no other option except to invoke the provisions of Regulation 11.9 of the Panjab University Calendar Vol. I, to declare the post vacant. Learned counsel for the respondent would next contend that the basic principles of natural justice were followed before taking appropriate action and no prejudice was caused to the appellant. He also submits that in view of the provisions of Regular 11.4 of the Panjab University Calendar, applicant could not have sought leave as a matter of right. Competent authority was well within its power to reject the leave of the appellant. Appellant must have resumed his duty, in case he was interested to continue working with the respondent-University. He prays for dismissal of the appeal.

Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction u/s 100 of the CPC (''CPC for short). To say so, reasons are more than one, which are being recorded hereinafter.

Entire case revolves around the provisions of Regulation 11.9 contained in chapter VI (A) of the Panjab University Calendar Vol. I which governed the condition of service of university employees and the same reads as under:

"If any employee overstays his leave or is otherwise absent from duty for more than a week, his post shall be liable to be declared vacant and he shall forfeit his salary during the time he so remained absent."

It is a matter of record and not in dispute that appellant went to Iraq to join in the Mosul University, even before his Sabbatical leave could be sanctioned by the competent authority. More than one communications were issued to the appellant including cablegram dated 18.9.1985, making it clear to him that he must resume his duty within one month failing which his post will be declared vacant. It is neither pleaded nor argued case on behalf of the appellant that he did not receive intimation issued by the respondent-University including the cablegram dated 18.9.1985.

Despite having received due intimation, appellant did not come back with a view to resume his duty with respondent-university. In such a situation, competent authority of the respondent university did not exceed its jurisdiction, while invoking abovesaid regulation 11.9 to declare the post held by the appellant, as vacant. It is also not in dispute that the appellant did not work during all these years, whereas he was seeking declaration that he was entitled for arrears of salary and other service benefits. Once the appellant decided not to resume his duty and kept on serving with the foreign university i.e. Mosul University, Iraq, he made it clear that he was no more interested in resuming his duty with the respondent-university. Having said that, this Court feels no hesitation to conclude that the learned first appellate court did not commit any error of law, while passing the impugned judgment and the same deserves to be upheld.

So far as the judgments relied upon by the learned counsel for the appellant are concerned, there is no dispute about the law laid down therein, however, on close perusal thereof, cited judgments have not been found to be of any help to the appellant, being distinguishable on facts. It is the settled proposition of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge-made law thereto. Sometimes, difference of even one additional fact or circumstance can make the world of difference, as held by Hon''ble the Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others,

Regulation 11.4 of the Panjab University Calendar clearly stipulates that leave cannot be claimed as of right. It further provides that when the exigencies of service so require, a discretion to refuse or revoke leave of any description is reserved with the authority which is empowered to grant the leave. In the present case, appellant had just put application before competent authority for sabbatical leave, presuming that the said kind of leave will be definitely granted to him, as if, it was right of the plaintiff-appellant. Once it was made clear to him that he would be proceeding to join with Mosul University at his own risk and responsibility, it was expected from the plaintiff-appellant that he should have waited for grant of leave by the competent authority.

However, instead of waiting for sanction of leave applied by the appellant, he proceeded to join the foreign assignment. Even after refusal of the grant of leave and due intimation having been sent to him, he did not come back to resume his duty. Thus, it cannot be said that the act of respondent-university was not in accordance with principles of natural justice. Argument of the learned counsel for the appellant, that no departmental enquiry was conducted, has been found to be fallacious for the reason that, no such departmental enquiry is either envisaged under Regulation 11.9 nor it would have been practically possible for the respondent-university. It is so said, because the appellant was not physically present in India. Once no such enquiry was contemplated under Regulation 11.9, respondent-university was not under legal obligation to conduct any enquiry. In this view of the matter, it is unhesitatingly held that the findings recorded by the learned Additional District Judge are based on correct appreciation of facts as well as the evidence available and the impugned judgment deserves to be upheld, for this reason as well.

Before arriving at a judicious conclusion, the learned first appellate court rightly re-appreciated the true facts of the case as well as the evidence led by the parties, so as to record his own cogent findings, from para 9 to 19 of the impugned judgment and relevant findings recorded in paras-18 and 19 read as under:-

"A perusal of the above shows that before passing the order that post is declared vacant, principles of natural justice should be adhere to. In this case, in my view, appellant University has not gone against the principles of natural justice in declaring the post held by respondent No. 1 vacant. In my view, order has been passed after complying with the principles of natural justice. On 3.9.1985, appellant University wrote letter to respondent No. 1 copy of which is Ex. D-13 stating that if he proceeded to Iraq as intended by him, he would be doing so at his own risk and responsibility. Despite this, he left for Iraq for Mosul University on 4.9.1985, despite the fact that Sabbatical leave was not sanctioned. Ex. D-17 is the copy of the Cablegram sent to the President, Mosul University by the Appellant University that respondent No. 1 left without leave or permission and he is not permitted to apply for paid assignment. Syndicate in its meeting dated 17.10.1985 recommended to the Senate that respondent No. 1 be asked to resume his duty by 27.11.1985. On 19.9.1985, Appellant University wrote letter, copy of which is Ex. P-10 to the Respondent that he should resume his duty in the department of Mathematics, Panjab University within one month from the date of issue of this letter, failing which the post of Lecturer held by him will be liable to be declared vacant under Regulation 11.9. No doubt, Syndicate the agenda on 17.10.1985 recommending the matter to the Senate that respondent No. 1 be asked to resume his duty by 27.11.1985 at the latest, failing which the post held by him would stand declared vacant with effect from 28.11.1985 under Regulation No. 11.9. In my view the fact that Syndicate held the meeting on 1710.1985 is no ground to hold that any prejudice stood caused to respondent No. 1, particularly when the post was held declared vacant with effect from 28.11.1985 by the Senate on the basis of the impugned order dated 7.12.1985, copy of which is Ex. P-13 and the Senate had taken the decision on 27.10.1985, i.e. much after the expiry of the period of 30 days mentioned in the letter, copy of which is Ex. P-10. Respondent No. 1 did not resume duty within 30 days. Opportunity was afforded by the appellant to respondent No. 1 to resume duty, but he did not join his duty. Cablegram was also sent to the appellant, copy of which is Ex. P-11 that he should resume his duty by 27.11.1985 at the latest, failing which post held by him would stand declared vacant, Instead of joining duty, respondent No. 1 got sent letter from Professor S.M.J. Ali of Mosul University, copy of which is Ex. P-12. It is dated 5.11.1985, according to which it was not possible to make alternative arrangement and as such, respondent No. 1 could not be relieved by 30.6.1986. It was further mentioned in the letter that respondent No. 1 has been assigned to teach mathematics to second year class. Respondent No. 1 could leave India to Mosul University without getting Sabbatical leave sanctioned, but he could not come to India despite ample opportunity afforded to him for resumption of duty by leaving the work of teaching in Mosul University. Respondent No. 1 has admitted the receipt of Cablegram dated 18.09.1985. He has also admitted that Cablegram was followed by the letter of Appellant University dated 19.9.1985 addressed to him with copy to Professor S.M.J. Ali of Mosul University that he should resume his duty in the department of mathematics within one month. Respondent No. 1 did no resume his duty. Matter was placed before the Syndicate and thereafter before Senate and ultimately in pursuance of the decision of the Senate dated 27.10.1985, the post held by respondent No. 1 was declared vacant with effect from 28.11.1985 under Regulation 11.9 of Panjab University Calendar Volume-I In this case, it cannot be said that Appellant University never contemplated of any opportunity to respondent No. 1 before passing the impugned order. Hence, the orders cannot be treated as Arbitrary or against the principles of natural justice. In the case of Roop Singh, Superintendent and others (supra), it was held that "This shows that University never contemplated of any hearing being given to the respondent whether before or after the impugned order of removal". With utmost regard and humility to this authority, I am of the view that in this case, Appellant University afforded opportunity informing that permission to apply for paid assignment was not granted and he should resume his duty. Despite this, he did not resume duty within the stipulated period. In these circumstances, the action of the appellant University is not against the principle of natural justice as held in the case of Roop Singh Superintendent (supra), enquiry for declaring his post vacant was not essential for proceedings under Regulation 11.9. Accordingly, the impugned orders are not illegal and bad in law."

During the course of hearing, learned counsel for the appellant could not point out any jurisdictional error or patent illegality apparent on the record of the case, in the impugned judgment passed by learned Additional District Judge. He also failed to put into service any substantive argument so as to convince this Court to take a different opinion than the one taken by the learned first appellate court. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine quo non for interference at the hands of this Court, while exercising its jurisdiction u/s 100 CPC. Thus, it is unhesitatingly held that the impugned judgment and decree passed by the learned Additional District Judge deserve to be upheld, for this reason as well.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.

Resultantly, instant appeal stands dismissed, however, with no order as to costs.