Andhra HC (Pre-Telangana)
Vice-Chancellor, Sri Padmavathi ... vs V.N. Das on 22 June, 2001
Equivalent citations: 2001(4)ALT422
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
S.B. Sinha, CJ
1. This appeal is directed against the judgment and order dated 23-11-1999 passed by the learned single Judge of this Court in Writ Petition No. 17180 of 1999 whereby and whereunder the petition filed by the respondent herein was allowed directing:
...........all the issues framed for consideration were answered in favour of the petitioner and against the respondent Nos. 1 and 2 and a writ of mandamus shall issue setting aside the orders of respondent No. 1 -Vice-Chancellor dated 24-7-1999, accepting the resignation of the petitioner as Registrar of the University and also resolution No. 4-12 dated 18-8-1999 withdrawing the financial powers of the officers of the University and consequently a direction is given to the respondents to continue the petitioner as Registrar till the completion of the tenure for which she was appointed after excluding the period under which she was not allowed to function as Registrar of the University with full financial powers as per the circular dated 29-6-1995 pursuant to the resolution of the Board of Management dated 28-12-1994. In the light of the facts of this case, the petitioner shall be entitled for costs in this writ petition. Advocates fee Rs.5,000/- and the same shall be payable by the 2nd respondent in her personal capacity.
2. The basic fact of the matter is not in dispute. The respondent herein was appointed as Professor and Head of the Department of English in Sri Padmavathi Mahila Viswa Vidyalaya. She was appointed as Registrar in charge on or about 16-11-1998 and as a regular Registrar from 6-3-1999 to 6-3-2000 i.e., for a period of one year.
3. Allegedly, disputes and differences had arisen between the respondent and the 2nd appellant herein as regards repairs carried out in quarters, fitting of a new stereo in the car and air-conditioning the same and various other matters. The 2nd appellant addressed a note dated 24-7-1999 to the Head, English Pharmaceuticals Technology which is a tell tale one and it reads thus:
The Vice-Chancellor noted a number of irregularities in the files sent to her regarding repairs in quarter No. 1 (Registrar's quarters) and also Registrar's car No. ADC 697. The car was installed with new items besides being repaired and newly coloured, etc., at a cost of Rs.58,360/- which did not go through the purchase committee and the quotations are also not in order. The new dash board in the car had provisions tike air conditioning and stereo system. Because of the irregularities in the file, the Vice-Chancellor ordered that the new dash board be removed and replaced with the old dash board and asked that the bill may be reduced accordingly. The Registrar was not happy with the Vice-Chancellor's criticism of both the irregularities in the repairs of the house and her car. She felt that she had been hurt. The City Cable Spokesperson came to the Vice-Chancellors' Chambers on the pretext to know on the development agenda of the University. There were several persons i.e., Chief Warden, Deputy Warden, the Deans of the both the schools, Deputy Registrar (Teaching and Non-Teaching, Assistant Registrar (Teaching and Academic) Controller of Examinations, Accounts Officer and Registrar. Suddenly the questions to the Vice-Chancellor became on the issue of difference between the Vice-Chancellor and the Registrar. The Vice-Chancellor was forced thereupon to explain the reason for the difference between the Vice-Chancellor and the Registrar. The Registrar complained to the media that the Vice-Chancellor is suddenly finding fault with the Registrar. In the altercations wherein the Registrar among other things, also complained that she is not able to defend herself because she does not have political backing. After the press left, the Vice-Chancellor told the Registrar to resign. She asked the two Deans to take additional charge as Registrar but they were reluctant and did not want to accept because they have too much work. Prof. P. Kusuma Kumari who worked as Dean earlier was told to take charge from the Registrar with immediate effect until further orders.
4. Pursuant to or in furtherance of the said purported direction the respondent herein sent her resignation on 24-7-1999 stating:
As desired by the Vice-Chancellor, I hereby tender my resignation as Registrar, Sri Padmavati Mahila Viswa Vidyalayam from 24-7-1999 A.N. I may be relieved immediately to enable me to join as Professor and Head in the Department of English Language and Literature on afternoon of today.
5. The said purported offer of resignation of the respondent was accepted on 24-7-1999 stating:
Your resignation as Registrar is accepted in the afternoon of 24-7-1999. Prof. Kusuma Kumari is kept in-charge Registrar unfil further orders. Kindly handover all papers, keys and cheque books, etc. The respondent appears to have approached the press in relation thereto whereupon by a memo dated 20-7-1999 she was asked to explain and offer remarks as by going to the press she allegedly had violated the conduct rules/code of conduct and "an employee is not expected to go to the press and give statements against the University in such a manner as is repugnant to the dignity of the University employee and cause or is likely to cause embarrassment to the administration in its relation with its staff or the students." On or about 31-7-1999 a circular was sent by the 2nd appellant herein to all the Heads of the Departments. The respondent, however, by a letter dated 3-8-1999 contended:
In continuation of my letter dated 23-7-1999 and 24-7-1999, I wish to bring the following to your kind notice. As stated in my letter of resignation, I had to resign under threat of dismissal from service on false allegation since my probation as Professor was not declared as on that day. I was forced by the Vice-Chancellor to resign from the post of Registrar in the presence of Senior Professors and staff of the University. In case I refused to resign the Vice-Chancellor has threatened of dismissal from the service of the University. Hence, I had to resign to maintain my self respect and professional dignity.
Since I was appointed by the Executive Council till March, 2000, I had postponed all my research projects and other academic commitments so that I could fulfil my responsibilities as Registrar. As I have another twelve years of service, this forced resignation will affect my future promotions and prospects along with my career.
Hence, I request all the members of Executive Council to help in getting me reinstated as Registrar to complete my term and give me an opportunity to fulfil my responsibilities and prove my credibilities. Also I will be able to complete the administrative tasks I have started as Registrar.
After submitting my resignation as Registrar, instead of reinstating me to my original post as Head of the English Department, the Vice-Chancellor further humiliated me by withholding the Headship and retaining a Reader of the Department as the Head.
I therefore appeal to all the members of the Executive Council to restore my dignity by reinstating me as the Registrar of the University.
This act of the Executive Council will instill faith and confidence among the teachers of the University and the Professors who will be entrusted with such responsibilities in future.
With the permission of the members of Executive Council, I wish to explain the conditions that led to my resignation in the Executive Council Meeting.
6. On or about 4-8-1999 the respondent withdrew her resignation stating that the same could be accepted or rejected only by the Executive Council and not by the Vice-Chancellor. By a note dated 5-8-1999 the respondent, in reply to the said representation dated 4-8-1999, was intimated:
With reference to your representation dated 4-8-1999, this is to inform you that your resignation tendered vide letter dated 24-7-1999 has been accepted by the Vice-Chancellor on 24-7-1999 itself as per the powers vested on her by the SPMVV Act, 1983 amended from time to time vide Section 10(3) which reads as follows:
'The Vice-Chancellor may if she is of opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act, and shall report to such authority the action taken by her on such matter.
Accordingly, you were relieved from the duties of Registrar with effect from 24-7-1999 A,N. and Prof P. Kusuma Kumari, Professor and Head, Department of Telugu Studies was kept as in-charge Registrar. Accepting the relief, you have reported for duty as Professor of the Department of English Language and Literature.
Hence, the action of the Vice-Chancellor in accepting you resignation and relieving from the duties of Registrar is in accordance with the provisions of the University Act. The matter will be placed before the ensuing meeting of the Executive Council.
7. A meeting of the Executive Council was called on 7-8-1999 but the same was postponed. In the aforementioned situation the respondent filed a writ petition before this Court praying therein for the following reliefs:
(a) Hold the action of the respondents herein harassing, humiliating and obtaining resignation from the post of Registrar of the Respondent University from the petitioner herein forcibly, by threatening and by pressurizing her and accepting the same hastily and then relying upon Section 10 (3) of the Sri Padmavathi Mahila Viswa Vidyalayam Act, 1983, upon submission of letter withdrawing the letter of resignation, and that taking away the Headship of the Department of English from the petitioner herein as illegal, arbitrary, discriminatory, irrational, illogical, void ab initio, without jurisdiction, perverse, abuse of power, colourable exercise of power, malicious and violative of Articles 14, 16 and 21 of the Constitution of India, and
(b) And direct respondents herein to continue the petitioner herein as Registrar, Sri Padmavathi Mahila Viswa Vidyalayam, Tirupathi till 6-3-2000 with all consequential benefits and attendant benefits, by the issuance of writ, order or direction (s) essentially in the nature of the writ of mandamus.
8. Before the learned single Judge several contentions were raised by the appellants herein in their counter-affidavit wherein inter alia the allegations of harassment made against the respondent had been denied and disputed. Having regard to the rival contentions of the parties the learned single Judge formulated the following issues:
1. Even assuming that the petitioner committed certain irregularities in getting the repairs to the house, executed and in getting the car repaired, whether the Vice-Chancellor is empowered to direct the petitioner to resign from the post of Registrar, if so, under what authority.
2. Whether the contention of the respondent that she accepted the resignation of the petitioner in exercise of the emergency powers vested in her under Section 10(3) of the Act, can be sustained in law or whether it amounts to mala fide exercise of the power.
3. Whether the action of the 2nd respondent in not giving the Headship of the English Department while positing the petitioner as Professor after accepting her resignation as Registrar is in bad faith.
4. What is the effect of the letter of the petitioner dated 4-8-1999 withdrawing her resignation?
5. Can it be said that the resolution adopted by the Executive Council in its meeting held on 18-8-1999 is in good faith and a bona fide one.
6. Whether the writ petition is liable to be dismissed on the ground of existence of alternative remedy.
9. The learned single Judge answered all the issues in favour of the respondent and against the appellants herein.
10. The learned Additional Advocate-General appearing on behalf of the appellants has raised two contentions in support of the appeal.
He firstly contended that having regard to the prayer (b) made in the writ petition the learned single Judge must be held to have committed grave error in issuing the directions (supra). The learned Additional Advocate-General would secondly urge that in any event the learned single Judge could not have directed the 2nd appellant to pay costs inter alia in her personal capacity.
11. Mr. J. Sudheer, the learned Counsel appearing on the behalf of the respondent, on the other hand, inter alia submitted that having regard to the findings arrived at by the learned single Judge in relation to each issue and the conduct of the 2nd appellant, the impugned directions issued by the learned single Judge should not be interfered with. The learned Counsel, would contend that having regard to the fact that the offer of resignation could be accepted by only the Executive Council and not by the Vice-Chancellor, the respondent in law could withdraw her resignation. My Sudheer would urge that the resignation addressed to any authority other than the appointing authority is void ab initio. Strong reliance in this connection has been placed on Raj Kumar v. Union of India. , Union of India v. Gopal Chandra, . He would also urge that availability of the alternative remedy is not a complete bar in entertaining the writ petition and in support of the said contention reliance has been placed on Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur and others, , Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, , U.P. State Co-operative Land Development Bank v. Chandra Bhan Dubey and others, . The further contention of Mr. Sudheer is that the action on the part of the 2nd respondent vis-a-vis the Executive Council is clearly mala fide in nature which although may not be proved strictly but can be inferred and perceived from the circumstances and in any event, when a plea of malice is raised the High Court cannot dismiss the writ petition in limini Reliance in this connection has been placed on Rajendra Roy v. Union of India and another, , S.R. Venkataraman v. Union of India, . The learned Counsel would urge that if the power conferred by the statute is exercised in bad faith or for collateral purpose the same would amount to abuse of power or arbitrary exercise of power resulting in the action being vitiated in law. Reliance in this connection has been placed on Hukam Chand v. Union of India, , Express Newspapers Private Limited v. Union of India, , Mahabir Auto Stores and others v. Indian Oil Corporation and others, , State of Bihar and another v. Shri P.P Sharma and another, , Collector v. Raja Ram Jaiswal, , State of Assam v. Banshidhar Shewbhagavan and Company, , P.R. Kulkarni and others, .
12. Having regard to the limited submission made by the learned Additional Advocate-General we are of the opinion that it is not necessary to advert to all the contentions raised by the learned Counsel for the respondent.
13. There cannot be any dispute that the offer of resignation must be a voluntary one. If the respondent had committed certain irregularities while performing her functions in the capacity of the Registrar of the appellant-University, appropriate penal action could have been taken against her. But no authority far less an authority which is not appointing authority could ask the respondent to offer resignation. The note dated 24-7-1999 issued by the appellant No.2 herein wherein certain incidents have been noted, leaves no manner of doubt that the respondent was directed to resign. The respondent in her letter dated 24-7-1999 clearly stated that the said resignation was being offered as desired by the Vice-Chancellor. Such a resignation having been obtained on coercion or otherwise and/or on the basis of a direction issued by an authority who had no say in the matter must be held to be wholly illegal. In N. Siddaiah v. State of A.P., 2001 (1) DT (AP) 6, a Division Bench of this Court has held that the statutory authorities must act within the four corners of the statute and they have no right to usurp the power of a higher committee which is not countenanced under the Act. It was further observed that any action taken by a statutory authority de hors the statute will be ultra vires. Furthermore, it is well settled principle of law that a resignation obtained by force would amount to termination of service. Such termination of service on the charges of irregularity could not have been effected without giving an opportunity of hearing. In N.P. Rao v. Tata Iron and Steel Company Limited, 1990 BBCJ 149, it was held:
In M/s. Southern Roadways Limited Bangalore v. K. Padmanabhan reported in 1979 Labour and Industrial Cases page 234, the Karnataka High Court while interpreting the provisions of Section 2-A of the Industrial Disputes Act held that securing a resignation of any employee by the employer by force or against his Will, in substance, amounts to termination of the services of the concerned employee.
The learned Judge held that the words 'or otherwise terminates the services' used in Section 2-A of the Industrial Disputes Act covers such cases of the termination brought about in any way whatsoever. It was further held that the question as to whether in a given case, the resignation was tendered voluntarily or secured under duress is a question of fact.
In Shriram Swami Shikashan Sanstha, Nagpur v. Education Officer Zilla Parishad, Nagpur and another reported in 1984 Lab IC page 100, a Division Bench of Bombay High Court while considering Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, held as follows:
We feel that it is a well settled proposition of law that a forced resignation, which means a resignation not voluntarily given by the employee but is brought about by force, duress or in any other manner by the employer is by the act of the employer. In substance the contract of service comes to an end in such case by the action on the part of the employer. It, therefore, amounts to termination of the service by the employer.
This aspect of the matter has been considered recently again by a Division Bench of the Bombay High Court in R.D. Survey v. Tata Iron and Steel Company Limited reported in 1989 Vol. I Current Labour Reporter page 553: 1989 Labour and Industrial Cases page 1406. In that case, the Bombay High Court had held that the word discharge or dismissal will include in it forced resignation.
In that, case, the Bombay High Court took into consideration some of the decisions referred to hereinabefore.
Although, it may not be possible for me to go to the extent that a forced resignation will come within the purview of the word 'discharge' or 'dismissal' but in my opinion, there cannot be any doubt that a resignation obtained by force, coercion or threat etc., and which is not a voluntary one, would come within the purview of the words 'or otherwise terminated.'
14. Furthermore, that part of the finding of the learned single Judge to the effect that in terms of Section 10 of Sri Padmavathi Manila Viswa Vidyalaya Act, 1983 (hereinafter referred to "the Act") only the Executive Council being the appropriate authority for accepting the resignation, the 2nd appellant had no authority to accept the same, having not been questioned, the writ petition was fit to be allowed even on that ground. The learned single Judge, in our opinion, has also rightly relying on or on the basis of the decision reported in Dr. Smt Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and others, , Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, , Express Newspapers Private Limited and others v. Union of India and others, , State of Assam v. Banshidhar Shewbhagavan and Company, , State of Mysore v. P.R. Kulkarni and others, , Raj Kumar v Union of India, , Union of India, ETC v. Gopal Chandra Misra and others, , held that the impugned action of the respondent was illegal and without jurisdiction,
15. In view of our findings aforementioned, in our opinion it is not necessary to go into the other aspects of the matter. However, so far as the question of malice is concerned, there cannot be any doubt having regard to the decision of the Apex Court in Smt S.R. Venkataraman v. Union of India and others, , that any action taken for any unauthorised purpose would amount to malice in law. But we must remain ourselves that it is now well settled that malice has to be pleaded and proved by cogent material evidence. (See Vijayawada Municipality v. A.P.S.E. Board, AIR 1977 SC 87, Kedar Nath v. State of Punjab, , Keshab Roy v. State of W.B., . It is also interesting to note that in Regional Manager v. Pawan Kumar Dubey, , the Apex Court has held that normally question of malice may not be gone into in a writ proceeding. The action of the 2nd appellant may be right or wrong. But that by itself would not mean that the same was actuated by malice or the same had been taken with a design to injure the respondent warranting award of damages by way of compensation or exemplary costs. Malice in fact is required to be conclusively proved in a properly instituted proceedings before an appropriate forum in accordance with law. Damages can only be granted in terms of the doctrine of constitutional tort. This aspect of the matter has been considered by this Court in Writ Appeal Nos.421 and 356 of 2001 disposed of on 11-6-2001. In Prabodh Sagar v. Punjab State Electricity Board, , the Apex Court held:
..Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. We ourselves feel it expedient to record that the petitioner has become more of a liability that an asset and in the event of there being such a situation vis-a-vis an employee, the employer will be within his liberty to take appropriate steps including the cessation of the relationship between the employer and the employee. The service conditions of the Board's employees also provide for voluntary (sic compulsory ) retirement, a person of the nature of the petitioner, as more fully detailed hereinbefore, cannot possibly be given any redress against the order of the Board for voluntary retirement. There must be factual support pertaining to the allegation of mala fides, unfortunately there is none. Mere user of the word "mala fide" by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i.e., exactly what the High Court has done and that is the reason why the narration has been noted in this judgment in extenso. Tampering of the annual confidential rolls has been alleged but there is no evidence in regard thereto or even to link up the two private respondents therewith. While it is true that the earlier relationship between an employer and employee or between the employees was that of mutual trust, confidence or welfare, presently the situation in general stands polluted and may be even one degree higher than the pollution of the environment, but that does not however clothe the Court to come to a conclusion of mala fide without there being any basic evidence being made available to the Court.
16. However, the question which remains to be answered is whether the teamed single Judge was correct in issuing the direction that the respondent shall continue hold the post of Registrar. The answer to the said question must be rendered in the negative. The respondent herself, as indicated hereinbefore, prayed in the writ petition that she be allowed to work as Registrar only upto 3-6-2000.
17. A Division Bench of this Court at the stage of admission stayed the operation of the judgment. It is true that by an order dated 9-3-2000 in WAMP No. 379 of 2000 it was directed that appointment of some other person in the post of Registrar would be subject to the result of the appeal, but having regard to the fact that the tenure of appointment of the respondent to the post of Registrar was already over, keeping in view the principles embodied under Section 14(1)(b) of the Specific Relief Act read with Section 42 thereof, we are of the considered view that in exercise of the Court's extraordinary jurisdiction under Article 226 of the Constitution of India it was not proper for the learned single Judge to grant a relief which even had not been prayed for. It is true that the writ Court is not only a Court of law but also a Court of equity. In an appropriate case, the writ Court can also mould the relief. But having regard to the fact situation obtaining herein and particularly the fact that the tenure of the respondent is already over as also having regard to the fact and circumstances of the present case and in particular the strained relation between her and the 2nd appellant to take her services as Registrar inasmuch as if such a direction is given ultimately the institution itself may suffer. It is not the contention of the respondent that any extra pecuniary benefit is attached to the said post. In any event, having regard to the order passed by the learned single Judge which is being affirmed by us the respondent would be entitled to all monetary benefits including salary and other emoluments if any. It is not a case where we would thrust the respondent upon the University to act as a Registrar. We, however, hasten to add that we do not mean to say that the Executive Council of the University which is the appropriate authority in this regard may not take a different decision inasmuch as it is the domain of the Executive Council to post any suitable person to act as a Registrar and as such we leave the matter at the hands of the appropriate authority in this regard. Having regard to the facts and circumstances of this case we are, however, of the opinion that keeping in view of the fact that the stand of the 2nd appellant has also been accepted by the University, instead of the 2nd appellant paying the costs personally, such costs may be imposed upon the University.
18. The writ appeal, subject to observations made hereinabove, is accordingly dismissed. There shall be no order as to costs.