BASUDEO TIWARY versus SIDO KANHU UNIVERSITY AND ORS.

Citation: [1998] SUPP. 1 S.C.R. 633 · Decided: 17-09-1998 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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BASUDEO TIWARY 
·v. 
SIDO KANHU UNIVERSITY AND ORS. 
SEPTEMBER 17, 1998 
(DR. AS. ANAND AND S. RAJENDRA BABU, JJ.) 
Bilzar State Universities Act, 1976: Section 4( 14) and 35(3). 
Service Law--U11iversity-Affiliated college under private 111a11age-
111e11t-Appoi11tment of lectllre~Take over of college as a co11stitue11t 
u11it-Re-appoi11t111e11t of lecture~laim for regularisation from initial 
date-Rejection of-Tem1i11ati011 011 the ground that lzis appointment was 
co11trwy to law-Clwlle11ge to tenni11atio11 order-Held tenni11atio11 was illegal 
as 110 oppoltlmity was afforded to employee. 
A 
B 
c 
Service law--Employe~o11fem1ent of absolute power to tenninate D 
~·ervice--Legality o.f. 
Natural justice-Sta/lite-Silence as to requirement of natural jus-
tice-Need to read such rcquirement--When arises. 
Constitwion of India, 1950 : Anicle 14. 
Equality--Non-arbitrminess is essential facet of A1ticle 14-Audi al-
teram partem facet of 11atural justice is also a requireme11t of Anicle 
14---Public employment-Employer's action against employee must be fair 
and reasonable. 
The appellant was appointed as a Lecturer in History on 25.1.1978 
in the S.R.T College, Dhamri which was an affiliated college under private 
management. Subsequently this college was taken over as a constituent 
unit of"the University. Pm:-suant to a resolution passed by the University 
syndicate an order dated 4.2.1986 was passed re-appointing the appellant 
and he was posted to Godda College. His re-presentation for regularisa-
tion of his services with effect from 25.1.1978 was rejected by Vice- Chan-
cellor of the University. On the other hand his services were terminated 
E 
F 
G 
on the ground that his appointment was not lawful in asmuch as he should 
have been appointed to a post in the service of the University purely on 
temporary basis not exceeding a period of 6 months. Since he had been H 
633 
634 
SUPREME COURT REPORTS [19981 SUPP.1 S.C.R. 
A appoirited for a period longer than six months it Wds not open to the 
University to do so without the express sanction of the Government. 
Consequently appellant's appointment was made contrary to the 
provisions of the Bihar State Universities Act, 1976. The appellant 
preferred a writ petition before the High Court which held that his ap-
B 
c 
D 
pointment was illegal and consequently upheld the termination order. The 
High Court did not examine the question of observance of rule of audi 
alteram partem. Section 35(3) of the Bihar State Universities Act, 1976 
provides that "Any appointment or promotion made contrary to the 
provisions of the Act, statutes, rule or regulations or in any irregular of 
unauthorised manner shall be terminated at any time without notice." 
In appeal to this Court it was contended on behalf of the appellant 
that the order made by the Vice-Chancellor was contrary to the principles 
of natural justice because it was passed without affording any opportunity 
of hearing to the appellant. 
Allowing the appeal and setting aside the order of High Court, this 
Court 
HELD : 1. In this case no notice has been given to the appellant 
before holding that his appointment is irregular or unauthorised. Conse-
E quently, the order terminating his services cannot be sustained. [641-B-C] 
2. The condition precedent for exercise of power u/s. 35(3) of the 
Bihar State Universities Act, 1976 is that an appointment had been made 
contrary to Act, Rules, Statutes and Regulations or otherwise. In order to 
F arrive at such a conclusion a finding has to be recorded and unless such 
a finding is recorded, termination cannot be made. To arrive at such a 
conclusion necessarily an enquiry will have to be mad_e as to whether such 
appointment was contrary to the provisions of the Act etc. If in a given 
case such exercise is absent, the condition precedent stands unfulfilled. To 
arrive at such a finding necessarily enquiry will have to be held and in 
G holding such an enquiry, notice to the person whose appointment is under 
enquiry will have to be issued. If notice is not given to him then it is like 
playing Hamlet without the Prince of Denmark, that is, if the employee 
concerned whose rights are affected, is not given notice of such a proceed-
ing and a conclusion is drawn in his absence, such a conclusion would not 
H be just, fair or reasonable. [640-F-G-H] 
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B. TIWARY v. SIDO KANHU UNNERSITY 
635 
Delhi Transport Corporation v. D. T. C. Mazdoor Congress, AIR (1991) A 
SC
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