Patna High Court
Prof. Sheikh Mujtaba HussainversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- HARISH KUMAR
Holding
The impugned order forfeiting the petitioner’s past service and terminating him without a valid departmental inquiry and in violation of the University Statutes is illegal and is set aside, entitling him to pension benefits as of his superannuation date.
Summary
Prof. Sheikh Mujtaba Hussain, a retired university professor, challenged a 2019 order by Patna University that forfeited his past service and terminated him on grounds of misconduct, despite no show‑cause notice, departmental inquiry or any statutory procedure under the University Statutes. He had taken study leave from 2002, failed to rejoin, and the University earlier issued a retrospective termination order in 2007 which the High Court had previously quashed. The University later invoked Rule 12(1) of its Statutes to forfeit his service, arguing abandonment and resignation, but the Court found no valid resignation and noted that forfeiture requires a proper inquiry under Rule 16. Relying on precedents that voluntary long‑term absence may amount to abandonment but does not justify punitive forfeiture without due process, the Court set aside the impugned order. Consequently, the petitioner is entitled to his pension and other superannuation benefits, but not back wages for periods of non‑service.
Issues considered
- Whether Patna University can forfeit the petitioner’s past service and terminate him on alleged misconduct without a show‑cause notice and departmental inquiry as required by the University Statutes.
- Whether a retrospective termination order is legally valid.
- Whether the petitioner’s alleged resignation can be used to justify forfeiture of past service.
- Whether the University may invoke Rule 12(1) of its Statutes after the Court’s earlier liberty to pass a fresh order.
- Whether the petitioner is entitled to pensionary benefits despite the University’s order.
Subjects
- service termination
- forfeiture of past service
- natural justice
- departmental inquiry
- retrospective termination
- university statutes
- pension rights
- misconduct
- abandonment of service
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2253 of 2024
======================================================
Prof. Sheikh Mujtaba Hussain Son of Late Sheikh Basharat Ali Resident of
Shaheen Lodge, Opposite Khuda Bakhsh Library, Ashok Rajpath P.S.
Pirbahore, Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. Principal Secretary, Department of Higher Education, Government of Bihar,
Patna.
3. Patna University through its Registrar, Patna.
4. Vice-Chancellor, Patna University, Patna.
5. Registrar, Patna University, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rajendra Narain, Sr. Advocate
Mrs. Anju Kumari @ Anju Narain, Advocate
For the State : Mr. Addl. Advocate General 5
For the Patna University : Mr. Manish Dhari Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 13-01-2026
Heard Mr. Rajendra Narain, learned Senior
Advocate for the petitioner and the State as well as Mr. Manish
Dhari Singh, learned Advocate for the Patna University.
2. The petitioner is aggrieved with the order dated
11.04.2019 passed by the Vice-chancellor, Patna University
communicated under the signature of Registrar of the University
vide Letter No. G/7600 dated 20.04.2019 by which the
respondent University communicated that since the earlier
decision dated 12.09.2007, terminating the services of the
petitioner with retrospective effect from 03.07.2002 has been
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held to be bad in law by the Court in C.W.J.C. No. 5638 of
2017, therefore under the impugned order dated 11.04.2019 /
20.04.2019, the respondent University has decided to forfeit the
past service of the petitioner alleging misconduct. The petitioner
also sought quashing of the order contained in Letter No.
G/7788 dated 25.05.2019 issued under the signature of
Registrar, Patna University informing the petitioner that his past
service is forfeited due to misconduct.
3. Briefly stated, the petitioner was initially
appointed as a lecturer in the Department of Sociology, B.N.
College, Patna University on 28.03.1973. The services of the
petitioner was duly confirmed and later on being found eligible
was promoted to the post of Reader with effect from 01.02.1985
vide notification no. G/668 dated 21.09.2000. The petitioner
was also promoted as University Professor with effect from
29.05.1989 under the University Notification No. G/352 dated
10.01.1991. While performing the duties of the University
Professor, the petitioner applied for Study leave from
01.04.2002 with an ambition and desire to write books. The
petitioner was asked and assured by the concerned authorities
that the formalities of grant of leave applied for would be
completed and so the petitioner was asked to make/proceed with
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preparation for his book writing work. The petitioner proceeded
on Study leave from 03.07.2002.
4. The petitioner’s books were published from time
to time by different book publishers, however, on completion of
the Study leave under the duly approved Statute for the
University, which may extend up to five years in appropriate
cases, especially in terms with Clause 6 (g) and Article 25 of the
said Statutes, when the petitioner returned to join back his
service and post in the University, he was informed that the
University had already terminated him, but no such letter of
termination was ever served on him. The petitioner, on enquiry,
came to know that a letter from the Patna University under
Memo No. G/2058 dated 12.09.2007 issued under the signature
of Registrar, Patna University stating therein that the petitioner’s
service had been terminated with effect from 03.07.2002. The
afore noted order since passed without assigning any reason or
any ground nor referring to the provision of law, apart from
being cryptic, totally illegal and arbitrary was brought to the
knowledge of all the authorities concerned, but all these failed
from getting any response and in the meanwhile the petitioner
also attained the age of superannuation on 31.12.2010. He
finally approached this Court in C.W.J.C. No. 5149 of 2015 and
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the same was admitted on 07.07.2015.
5. Learned Senior Advocate while assailing the
impugned order has submitted that the past service of the
petitioner was forfeited alleging misconduct, but surprisingly
without issuance of any show-cause notice or charge memo and
without holding any departmental enquiry. Besides the fact that
the decision to forfeit the past service has been taken after
decade of the superannuation of the petitioner.
6. Referring to the averments made in the writ
petition, especially para-15, Mr. Narain, learned Senior
Advocate, contended that the University has filed its response in
the aforesaid case and categorically admitted the position that
the petitioner had applied for extra ordinary leave from
06.07.2001 to 31.03.2002 and further from 03.07.2002 to
31.03.2004, but his application was not accepted by the
University at that time and his matter was placed in the meeting
of Syndicate where it was resolved that the petitioner should be
requested to join the services and accordingly letter no. G/1371
dated 09.09.2004 was issued, but the same could not be
delivered due to wrong address. The matter was again placed in
the meeting of Syndicate on 20.08.2007 and it was resolved that
the services of the petitioner should be terminated with effect
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from 03.07.2002. The University specifically contended that
under Clause 12(1) of the Statutes, past services of the
petitioner’s has been forfeited, though the aforesaid clause was
not applicable, as there was neither any misconduct nor any
legal finding was there in a duly constituted departmental
committee. In the meanwhile, the petitioner filed another writ
petition, bearing C.W.J.C. No. 5638 of 2017 challenging the
said said order of termination dated 12.09.2007 holding it illegal
and unsustainable, since no order of termination could be made
with retrospective effect. However, the learned Court gave
liberty to the respondents to take appropriate action in
accordance with law after hearing the petitioner and keeping the
Rules of service jurisprudence in view.
7. Thereafter, the earlier writ petition, bearing
C.W.J.C. No. 5149 of 2015 was also taken by the Court, which
was disposed of in terms of the order of the Court dated
29.03.2018 in C.W.J.C. No. 5638 of 2017.
8. Notwithstanding the aforesaid orders passed by
this Court when no action was taken, the petitioner filed
Contempt Petition, bearing M.J.C. No. 1993 of 2018. In the
meanwhile, the Vice-chancellor of the University came out with
the impugned order, duly communicated to the petitioner,
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through letter no. G/7600 dated 20.04.2019, followed by another
letter bearing no. G/7788 stating therein that since retrospective
termination is not tenable, therefore, in terms of Rule 12(1) of
the University Statutes, the past service of the petitioner stood
forfeited due to misconduct by disrespecting the order of the
University authority. The University further ordered that the
payment of pension and gratuity of the petitioner would be
ceased and he could only pray for the amount of GPF, Group
Insurance and Leave Encashment.
9. Since the contempt application, bearing MJC No.
1993 of 2018 has finally been disposed off by the Court on
11.01.2024 giving liberty to the petitioner, he could take
appropriate action for payment of pending dues, the petitioner
challenged the impugned order by filing the present writ petition
after disposal of the same.
10. Mr. Narain, learned Senior Advocate adverting
to the aforesaid facts, has submitted that on being given liberty
by this Court to pass a fresh order in accordance with law, the
respondent University again committed further illegality by
passing the impugned order referring to Rule 12(1) of the
Statutes. Despite the respondents having admitted that any
correspondence/communication with the petitioner could not be
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made before passing the impugned order, the petitioner has
neither been served with any show-cause notice nor any charge
memo was issued nor any departmental proceeding had ever
been held during his service period till 31.12.2010. For any
disciplinary action under Rules 15 and 17 of the Statutes,
reasonable opportunity of hearing after framing definite
charge/charges with list of witnesses and evidence is sine qua
non. The charged official must be given opportunity to file his
statement of defence and denial of the same by the University.
Even for holding and saying about any misconduct said to have
been committed by the employee or teacher of the University, it
has to adopt and follow the same procedure of holding a
departmental enquiry before arriving any such decision. Since
the conduct of the petitioner is termed to be misconduct causing
stigma, the same cannot be passed without following the
principle of natural justice.
11. On the other hand, Mr. Manish Dhari Singh,
learned Advocate for the University while refuting the afore
noted contention led by the learned Senior Advocate for the
petitioner vehemently contended that proposal for sanction of
his leave was placed before the Syndicate and after initial leave
when the petitioner had applied for fresh extraordinary leave
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from 03.07.2002 to 31.03.2004 he was asked to join his service
in the University immediately otherwise his service would be
terminated. The aforesaid information has also been given to the
petitioner vide letter no.G/1371 dated 09.09.2004, but the
petitioner did not join his duty, rather asked for extension of
leave. The petitioner also submitted his resignation letter on
31.03.2006 on the grounds of indifferent health.
12. In the aforesaid premise, the Syndicate in its
meeting decided that his service be terminated with effect from
03.07.2002. Since the order of termination was held to be bad in
law on account of retrospective date, the same was again
considered by the Vice-chancellor of the University and a fresh
impugned order has been passed in terms with Rule 12(1) of the
Statutes and his past service is forfeited on the ground of
misconduct and non-compliance of the order of the respondent
University and tendering the resignation instead of apologizing
for his misconduct.
13. Referring to the impugned order as well as as
earlier decision dated 12.09.2007, Mr. Manish Dhari Singh,
learned Advocate for the University further contended that the
reason for his termination i.e. absence without permission was
not held to be invalid and the Court in the earlier round of
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litigation had found that since the termination of the petitioner
has been made retrospective and thus found unsustainable in
law, hence fresh order has been passed accordingly by treating
the date of termination to be with effect from the issuance of the
notification and forfeiting his past service due to misconduct
and disrespecting the order of the University, besides tendering
the resignation instead of apologizing for his misconduct.
14. Heavy reliance has been placed on a decision
rendered by this Court in the case of Pooja Verma Vs. The
Patna University, Patna and Ors., reported in 2025(1) PLJR
513 wherein the Court placing reliance upon the decision of the
Apex Court in the case of Vijay S. Sathaye Vs. Indian Airlines
Limited & Ors., reported in (2013) 10 SCC 253 has observed
that when a government servant willfully absents
himself/herself from duty for a long period without giving
notice to the employer, he/she can not get the pay for period
during which he/she remained absent and it may amount to
voluntary abandonment of service and in that eventuality, the
bonds of service come to an end automatically without requiring
any order to be passed by the employer.
15. Placing reliance upon the afore noted decision,
learned Advocate for the University prays for dismissal of the
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writ petition.
16. This Court has bestowed the anxious
consideration to the submissions advanced by the learned Senior
Advocate/Advocate for the respective parties and also perused
the materials available on record.
17. In the earlier round of litigation, this Court, while
adjudicating the validity of the order dated 12.09.2007, has been
pleased to hold that termination order cannot operate from
retrospective date and found it unsustainable and accordingly
quashed the same. The liberty was made available to the
respondents to take appropriate action following the rules
contained in the service Statutes applicable to the teachers of the
University. In pursuance of the order passed by this Court, as
afore-noted, now the University has come out with a fresh order
dated 11.04.2019 and rectified its mistake to the extent that the
earlier order dated 12.09.2007 may be assumed from the date of
its Notification and not w.e.f. 03.07.2002. However, while
reviving the termination order, the University further held that
the past services of the petitioner was also forfeited due to
misconduct on account of disrespecting the order of the
University authorities and tendering the resignation instead of
apologizing under Rule 12(1) of the Patna University Statutes.
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Once the order of termination is consequent to misconduct, the
same cannot be proved without any inquiry, is the rule, unless it
provides otherwise.
18. Now coming to Rule 12(1) of the Patna University
Statutes, it clearly reads that resignation from service, or
dismissal or removal from it for misconduct, insolvency
inefficiency not due to age or failure to pass a prescribed
examination entails forfeiture of past service.
19. So far the resignation tendered by the petitioner is
concerned, the same has never been acted upon and even before
the order of termination having been passed on account of
misconduct; hence plea of tendering the resignation instead of
apologizing for his misconduct, is out and out a new ground
which is not available to the University, while passing a fresh
order in pursuance of the liberty extended by this Court.
20. Before proceeding further and adjudicating the
validity of the impugned order, some facts are relevant for
consideration, as noted in the impugned order itself. The
petitioner, for the first time, applied for extraordinary leave for
three months w.e.f. 06.07.2001 and later he applied for
extension of his leave up to 31.03.2002. A proposal for sanction
of his leave was placed before the Syndicate on 04.10.2002,
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whereupon he was asked vide Letter No.G-298 dated
29.03.2003 to submit information regarding the nature of leave
which he was availing and where he was at that point of time.
The petitioner vide letter dated 31.03.2003 informed the
University that he was on extraordinary leave for writing a book
till 31.03.2002 and resumed his duty on 01.04.2002. The
proposal of sanction of his extraordinary leave from 06.07.2001
to 31.03.2002 was placed again before the Syndicate on
22.05.2004 along with an application for fresh period of
extraordinary leave from 03.07.2002 to 30.03.2004. However, it
was decided by the Syndicate that the petitioner should
immediately submit his joining otherwise his service would be
terminated. Accordingly, Letter No.G-1371 dated 09.09.2004
was issued with a direction to join the University.
21. The afore-noted letter has never been served upon
the petitioner, rather the concerned respondent himself admitted
that the same could not be delivered due to the wrong address.
There is no confrontation to the prescription of the Statutes,
especially Rule 6(3) that leave cannot be claimed as a matter of
right when exigencies of the university service so require,
discretion to refuse or revoke leave of any description is
reserved to the authority empowered to grant it. However, once
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the respondent University comes to the conclusion that the past
service of the petitioner right from 1973 till 2002, is forfeited on
account of misconduct, besides it led to termination of an
employee, it will certainly attract the relevant prescriptions of
the University Statutes, which deal with the general condition of
service of employees of the Universities.
22. Rule 16 of the Statutes clearly mandates that no
order of dismissal, removal or reduction shall be passed on a
University servant unless he has been informed in writing of the
ground on which it is proposed to take action, and has been
afforded a reasonable opportunity of defending himself. The
grounds on which, it is proposed to take action must be reduced
in a definite charge or charges, which shall be communicated to
the person charged together with the statement of the allegations
and thus he shall be required to put in writing his statement of
his defence, if the authority of the delinquent so directs or
desires, an oral inquiry shall be held. The delinquent shall also
be entitled to produce evidence or to cross-examine the
witnesses. After completion of the proper inquiry, the authority
competent shall pass appropriate order or impose penalty after
serving a copy of the inquiry report followed by a second show-
cause notice.
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23. Any order of punishment based upon the charge of
misconduct, is per se stigmatic in nature, besides causing civil
consequences and irreparable loss. Hence the same cannot be
effected without following the provisions as prescribed under
the Statutes. Where Statutes provides for a thing to be done in a
particular manner, then it has to be done in that manner and in
no other manner [Taylor v. Taylor 1875 LR 1 CHD 426].
24. So far as the legal position is concerned, it is well
settled that an employee has a right to abandon the service any
time voluntarily by submitting his resignation and alternatively
not joining the duty and remaining absent for long. Absence
from the duty in the beginning may be a misconduct, but when
absence is for a long period, it may amount to voluntary
abandonment of service and in that eventuality, the bonds of
service come to an end automatically without requiring any
order to be passed by the employer. For the said purpose, the
learned Advocate for the University has rightly placed reliance
upon a decision of this Court rendered in the case of Vijay S.
Sathaye (supra) as also in the case of Pooja Verma (supra).
However, it is needless to observe that to establish voluntary,
long term absence from duty by an employee constitutes
abandonment and no formal termination order is required.
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Conversely, for the purposes of termination, there has to be
positive action on the part of the employer, while abandonment
of service is a consequence of unilateral action on behalf of the
employee and the employer has no role in it.
25. In the case at hand, this is not a mere
abandonment of service leading to forfeiture of past services,
rather the petitioner has been subjected to termination on
account of misconduct due to unauthorized absence and
disrespecting the order of the authorities, in the opinion of this
Court, such action could have been justified and get validated
only if the prescriptions provided in the Statutes, especially Rule
16 thereof, are followed.
26. This Court, in the afore-noted facts, circumstances
and the position obtaining in law, has no hesitation to set aside
the impugned order dated 11.04.2019 passed by the Vice-
chancellor, Patna University communicated under the signature
of Registrar of the University vide Letter No.G/7600 dated
20.04.2019.
27. It is made clear that the petitioner shall not be
entitled to any back wages/salary for the period he did not
discharge his duty, however, on account of setting aside of the
impugned order, he shall be entitled to get all the pensionary
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benefits by treating him to be superannuated with effect from
the date he attained his superannuation. The entire exercise must
be completed, preferably within a period of twelve weeks.
28. The writ petition stands allowed.
29. There shall be no order as to cost(s).
(Harish Kumar, J)
rohit/-
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Uploading Date 21.01.2026
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