DR. AKSHAIBAR LAL AND OTHERS versus THE VICE-CHANCELLOR, BANARAS HINDU UNIVERSITY, AND OTHERS.

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 ;

p. 388

Group 1

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1. Dr. Akshaibar Lal : Header in College of ~

p. 388

(C. A. No. 480 of 1960) Agriculturt2.

p. 388

(Resolution No. 100-4 n1onths' pay in lieu of ~ notice)

p. 388

2. Dr. Gopal 'l'ripathi : Professor of Chenli- (C. A. No. 482 of 1960) c:al Engineering and Prjncipal, College of

p. 388

Technology.

p. 388

(Hesolution :'\ o. 101-4 month~ ' pay in lieu of notice)

p. 388

3. Pandit Ram Vyas Pandey : Reader and Head of (C. A. No. 486 of 1960) Department of J yotish-Sanskrit Maha-

p. 389

vidyala ya.

p. 389

(Resolution No. 99-under cis. 4 and 7 of the agreement dated 1\:Iarch 26, 1931, and Or d inance No. 6 of the Ordinances of the Univer~ity-6 months' pay in lieu of notice)

p. 389

4. Dr. Gauri Shankar '1 iwa·ti : Lecturer in Chemis- (C. A. No. 487 of 1960) try-Central Hindu

p. 389

(;ollege (Kamachha)

p. 389

(Resolution No. 102-4 months' pay in lieu of notice)

p. 389

Group II

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5. D-r. Ram Deo Misra: Professor and Head (C. A. No. 481 of 1960) of Department of Botany, College of

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Science.

p. 389

(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)

p. 389

6. Mr. Ganesh Prasad Singh : Lecturer in Physical (C. A. No. 483 of 1960) · Education, Teachers'

p. 389

Training College.

p. 389

(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)

p. 389

7. Mr. Radhe-y Shyam Shat·1na: Lecturer, College of

p. 389

(C. A. No. 484 of 1960) Technology.

p. 389

(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)

p. 389

8. Dr. Ram Yash Roy: Lecturer in Botany,

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(C. A. No. 485 of 1960) College of Science.

p. 389

(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).

p. 389

The cases of the appellants are very sin1ilar; but fall into two groups as indicated above. The differences are not many, and some of them are indicated in the gist of the resolu t.ions not Pel against their names. Other differences will appear from the facts, which are given below.

p. 390

The affairs of the Banaras Hindu l)niversity, for 1.

p. 390

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:

p. 390

I. Dr. A. L. Mudaliar (President) 2. Mr. !1. C. ~iahajan 3. Dt·. P. ~ubbarayan 4. Smt. Sucheta Kripalani

p. 390

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. ~

p. 390

On June 14, 1958, the President of India promulgat. ~ ed an Ordinance (IV of 1958) to amend the Banaras Hindu University Act, HH5. By s. 8 of the Ordinance, l 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 posts in the Universit.y at the com mencement of the Ordinance, in respect of whom there was reason t_o believe that their con t inuance in office would be detrt· mental to the interests of the University, and to forward its recommendations to the Executive Council to take s uch action as it may deem fit.

pp. 390–391

The Ordinance of the President was repealed by the Banaras Hin:1u University (Amendn1ent) Act~ 1958 (XXXIV of 1958), which re-enacted Statute No. 30 as follows:

p. 391

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 un , 1958, was holding any teaching, administrative or otlwr· post in he University would be detrimental to the intt:rest.s of t he University, it m ay, aftrr r ecording briefly the grounds for sueh be1ief, r efer 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 :

p. 391

Povided that, where an allegation of the n-ature referred to in this sub-section reJat eH 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 ..

p. 391

(2) If on any such reference the Solici tor-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 conce rned to a Commi ttee to be constituted for the purpose by t he Cen tral Government and known as the Re viewing Committee, which shall consist of the follo,ving persons, namely :-

p. 391

(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

p. 391

(b) two persons nominated by the Central Government from- among persons who have had administr~tin~ or other experience in educational matters, I96I

pp. 391–392

(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

p. 392

desires, forward its recommendations to the Execu- J.

p. 392

iive Council.

p. 392

(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.

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(5) On receipt of the recommendations of the Reviewing Committee, the Executive Council shall take such action thereon as it n1ay think fit :

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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.

p. 392

(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."

p. 392

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 were, however, sent to the four appellants in Group II above, and this is one distinguishing feature in the cases. v.

pp. 392–393

The four appellants (Group I) filed. petitions under Art. 226 of the Constitution (W. Ps. Nos. 712 to 715 of 1960) on March 9, 1960, in the High Court of Allahabad Ut~iversity for relief against the proposed action. On the same day D. S. Mathur, J. passed an ad interim order as follows:

p. 393

"The respondents Nos. 1 to 3 are directed until further orders, not to t_ake any further proceedings

p. 393

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: .

p. 393

''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

p. 393

On May 15, 1960, the Executive Council of the University passed a number of Resolutions. Resolution N 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:

p. 393

'' ...... that the consideration of the above cases be postponed till after the writ petitions abovementioned are disposed of by the High Court."

p. 393

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 passed on the same day. Four Resolutions were also . passed terminating the services of the other appellants belonging to Group II.

pp. 393–394

It was after theRe Resolutions we-re communicated that the eight petitions were filed by the appellants in

p. 394

the High Court of Allahabad. The High Court by a J. common judgment., which is under appeal, dismissed all the petitions with costs.

p. 394

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

p. 394

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.

p. 394

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 are not concerned with the Regulations, and no reference need be made to them except to say that they . ranked below the Ordinances and had to be consistent with the Act, the Statutes and the Ordinances.

pp. 394–395

In the Act, th£3 word "Statute , was defined to mean " the Statutes for the time being in force", and there was an analogous definition of the word "Ordinances,,. Section 17(~) of the Act enacted that ~'the first J. Statutes shall be those set out in Schedule I ' 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:

p. 395

''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 repeal of

p. 395

Statute shall require the previous approval of the Visitor who may sanction, disallow or remit it for

p. 395

further consideration." Section 4A of the Act invested the University with powers, and sub-ss. (7) and (13) n1ay be quoted here:

p. 395

"(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;

p. 395

(13) to create administrative, ministerial and other

p. 395

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.

p. 395

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 :

p. 395

"The Executive Council shall exercise such powers and perform such duties as may be vested in it by

p. 395

. the Statutes.,, Section 17· of the Act provided how the statutes were to he fnuned aud what they weJ'e to contain. \\' e ha.ve already referred to the first Statutes of the Uni· varsity which were placed in Schedule I of the Act and the power of the Executive Council to make new or additional Statutes or to amend or repeal existing Statutes subject to the prior approval of the Visitor. Section 17 provided :

pp. 395–396

"17(1). Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely:- .......................................................................

p. 396

(c) the appointment, powers and duties of the officers of the University." .

p. 396

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.

p. 396

Section 18 of the Act (as amended in 1951) provided:

p. 396

"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 :-

p. 396

Ordinances : ··•••·•·•··••••••••··•··••·••·•········•••••·············••••·•···•··

p. 396

(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.. .

p. 396

One more provision of the Act as amended in 1951 may be read here. It is s. I9A, which provided :

p. 396

" 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. ·

p. 396

(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 by the Executive Council, one member nominated by the officer or teacher concerned and an umpire

pp. 396–397

. d b th v· 't d th d . . f th a pp01nte y e or, an e eciSIOn o Tribunal shall be final.,,

p. 397

The powers granted to the Executive Council by the Statutes 1nay now be seen. Statute No. 18 was amended in 1958, and is referred to as amended. laid down:

p. 397, margin E

" 18(1). The Executive Council shall, subject 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.

p. 397, margin E

(2) Subject to the provisions of the Act. the Statutes and the Ordinances, the Executive Council shall, addition to all other powers vested in. it, have the following powers, namely :

p. 397, margin E

(i) To appoint~ from time to time, ... Principals 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:

p. 397, margin E

(Proviso omitted)

p. 397, margin E

(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

p. 397, margin E

gener~lly or specially direct; ... " . The power of appointment was thus conferred by the Statutes on the Executive Council.

p. 397, margin E

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~ of service and terms of appointment. Ordinance No. 2 in this section lays down :

pp. 397–398, margin E

~. f h ff 1 b

p. 398

"The conditwns of serviCe o t e sta s 1a e embodied in the Agreement Form of service. Every employee shall on confirmation sign the agreement F "

p. 398

orm. .f. Ordinance No. 6, before its amendment, read:

p. 398

"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

p. 398

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.

p. 398

In 1958, the Executive Council re-framed this Ordin-

p. 398

r ' ance but surprisingly enough, without any better success. The re-enacted Ordinance, as printed in the amendment slip, read:

p. 398

" 6. The Executive Council shall be entitled to f ' terminate the engagement of an employee for (i) misconduct, or (ii) physical unfitness, or {iii) inefficiency, or

p. 398

(iv) breach on his part of one or more of the tertns of his agreement with tho University, after calling for and considering his explanation in each of the ca!3es mentioned above; or

pp. 398–399

(v) after giving four months' notice or payment of four months' salary in lieu thereof."

p. 399

The dispute this time arises from the careless use of the word Hor". The Ordinance mentions four reasons for termination of services, which are numbered (i) 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:

p. 399

"The Executive Council shall be entitled to tern1inate the engagement of an employee for .........................................................................

p. 399

(v) after giving four months' notice4 .............. "; which makes the word "for" superfluous in the sentence.

p. 399

In our opinion, the sense of the Ordinance can be obtained by rearranging the matter thus:

p. 399

"6. The Executive Council shall be entitled to terminate the engagement of an employeefor (i) misconduct, or (ii) physwal unfitness, or (iii) inefficiency, or

p. 399

(iv) breach on his part of one or more of the terms of his agreement with the University,

p. 399

after calling for and considering his explanation in each of the cases mentioned above;

p. 399

or (v) after giving four months' notice or payment

p. 399

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 cause, on four months' notice or four months' salary in lieu of notice. The case of the University is that all these orders of termination of service were passed under the power granted by cl. (v) of this Ordinance, modified by the terms of the agreements as they existed.

pp. 399–400

The result of this analysis shows that the power of .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.

p. 400

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 was detrimental to the interests of the University. The reasons for such belief had to be recorded briefly and the Resolution together with the connected papers '· had to be sent to the Solicitor-General. In the case of a teacher who was a men1ber of the Executive Council, the Executive Council was not to consider the allega~ tions but to send the papers to the Solicitor-General. 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:

pp. 400–401

"Before taking any action against any person on the recommendations of the Reviewing Corn mit tee, the Executive Council 8hall give him a reasonable

p. 401

opportunity of being heard. " The power of the Executive Council was conferred by cl. 5, which provided : ·

p. 401

"On receipt of the recommendations of the Reviewing Committee, the Executive Council shall take such action thereon as it may think fit.,

p. 401

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

p. 401

under Statute No. 30, and the Executive Council I 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. ·

p. 401

In so far as the power of terminating services with out notice was concerned, the general power could not

p. 402

be invoked, when allegations of conduct detrimental v:' to the interests of the University had already been made and scrutinised by the Solicitor~General and the Reviewing Committee and the matter was pending before the Executive Council. The powers granted by 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.

p. 402

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.

p. 402

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. ( The State of Madhya Pradesh v. Veereshwar Rao Agnihotry ( Brockwell v. Bullock('), _ Seward v. " Vera Cruz'' ( and Barker v. Edger ( 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 of Kerala'v. G. M. Francis and Go. (1) ). The question thus is whether there is anything expressly stated by

pp. 402–403

. . d h" h ld l d I aw or c I ear I y 1mp 1 w tc wou exc u e powers under the agre_ements and the Ordinances, when a.ction has been taken under the Statutes. The University Act expressly makes the Ordinances subject to the Statutes, and in case of any clash Let ween them, the Ordinancet> rnust be made to stand down. Further, 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.

p. 403

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 follow- Ing passage :

p. 403

"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 which if proved to exist might establish the ultra. vires character of the action in question " (Short v.

pp. 403–404

Poole Corporation (1) ). We are not concerned so much with the motives, nor even with the justice of the action as with its legality, and, in our opinion, hav~ng invoked Statute No. 30 in

p. 404

the special circumstances and having gone on with Hidayatullah j.

p. 404

that procedure, it was not possible to undo everything and rely upon other powers, which were not only subordinate but were clearly not ava··lable in those special circumstances which led to action under Statute No. 30.

p. 404

The next argument is that Statute No. 30 itself left liberty of action, inasmuch as cl. 5 gave power to the Executive Council to act as it thought fit. To begin with, it is wrong to think that the words conferring discretion are to be read in the abstract. Those words have to be read within the four corners of Statute No. 30. The words are permissive, no doubt, as to the choice of action, but are imperative in so far as they require some act completing the intent and purpose of the enquiry itself. The words "shall take such action thereon as it may think fit" give liberty of action on the recmnmendations of the Heviewing Committee, but Jay a duty to form an opinion. The words do not give a discretion to take action outside the Statute."

p. 404

Lastly, it is argued that the Executive Council as the appointing authority had the power also to dismiss, and reference is made to ss. 4(7) and 4(13) of the Act and s. 16 of the General Clauses Act. None can deny that the University did possess such a power. The question is whether it exercised it correctly under the Statutes and .Ordinances. We are quite clear that the Executive Council did not.. We n1ay say here tha~ we have not accepted the contention that the action of the Executive Council was based upon malice or any indirect or oblique motive. The error was in thinking that there were cumulative or alternative powers, even after the adoption of the special procedure under Statute No. 30. We are, therefore, of opinion that the impugned Resolutions were ultra vires and should be quashed. .

pp. 404–405

In the result, the appeals are allowed. Resolut1ons Nos. 90, 94 to 96 and 99 to 102 dated May 15, 1960, the Executive Council of the Banaras Hindu University are quashed, and an appropriate writ or writs shall issue to the respondents to that effect. The respondents shall pay the costs of these appeals, as also of the High Court. Only one set of hearing fee here and in the High Court shall be allowed.

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Appeals allowed. MAHANTH RAMSW AROOP DAS

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THE STATE OF BIHAR. (J. L. KAPUR, M. and J. C. SHAH, JJ.)

p. 405

Agricultural Income~tax-Estate in management of Court Receiver-Owner if liable to be assessed to tax for such period-- Bihar Agricultural Income-tax Act, XXXII of I948, ss. (m), IJ.

p. 405

The appellant was the Mahant of the Asthal Estate in Bihar which was in the management of a Receiver appointed by Civil Court in a suit relating to the estate. On appeal the question that arose for decision in this Court was whether the appellant- Mahant was liable to be assessed under the Bihar Agricultural Income-tax Act, 1948, to pay agricultural income-tax for the year in which the estate was in the management of the Court Receiver.

p. 405

Held, that the income though collected by the Receiver the income of the appellant. By virtue of the provisions of ss. cl. and 13 of the Bihar Agricultural Income-tax Act it open to the taxing authorities to treat the Receiver as assessee because he held the property from ·-~ich income derived, but on that account the income in tfie.'nand of the owner was not exempt from liability to assessment of tax. Section the Act provides for charging agricultural income of every "person " as defined in s. cl. (m) which includes a receiver s. 13 merely provides a machinery for recovery of tax from "persons" including receivers and is not by itself a charging section.

p. 405

JURISDICTION: Civil Appeal No. 449 of 1958.

p. 405

Appeal by special leave from the judgment and decree dated August 7, 1956, of the Patna High Court ·in Misc. Judicial Case No. 604 of 1953.

p. 405