U.P. Singh, J. - (1.) Challenging the notification dated 11.9.1995 (contained in Annexure-9), whereby the Vice-Chancellor in exercise of his emergent power under Section 7-C(5) of the Banaras Hindu University Act has restrained the petitioner to act as Director of the Institute of Medical Sciences till the submission of the report of the enquiry committee constituted by the University and, further, the decision/proceedings of the Executive Council dated 19.11.1995 on petitioner's appeal (contained in Annexure-20), two fold contentions have been raised by the petitioner's counsel Sri L.P. Naithani, that the petitioner having been appointed on a tenure post for a period of five years could not be restrained from functioning as Director by the Vice-Chancellor even in exercise of his emergency power under Section 7-C(5) of the Act without affording reasonable opportunity of hearing to the petitioner. And, the decision of the Executive Council dated 19.11.1995 taken on the petitioner's appeal also suffered from the same vice and was vitiated because of the presence of the Vice-Chancellor in the meeting of the Executive Council and the Executive Council did not apply its independent mind.
(2.) On the other hand the learned counsel appearing for the University Sri Sudhir Chandra contended that since the emergent situation was prevailing in the Institute of Medical Sciences requiring such an action under the emergency provisions of the Act for maintaining the academic standard and administrative discipline in the Institute so that the Institute and the Hospital attached with it, could start functioning, which had remained closed for the last several days to the sufferance of the general public at large, in such an emergent situation immediate action was required to be taken without any delay and, therefore, the Vice-Chancellor was not required to provide opportunity of hearing while exercising his emergent power. In the absence of any allegation of mala fide against the Vice-Chancellor, his presence did not adversely prejudice the Executive Council in taking its decision. The Executive Council had taken note of the memorandum of appeal submitted by the petitioner and was only considering as to whether an emergency was of such a nature that the immediate action was required to be taken by the Vice-Chancellor and the impugned order passed by the Vice-Chancellor did not affect the services of the petitioner except that he was restrained from discharging his function till the submission of the enquiry report on the alleged incident leading to closure of the Institute for a considerable long time.
(3.) In order to appreciate the rival contention it is necessary to notice the provisions of Section 7-C(5) of the Act which reads as follows. Sub-section 5 of Section 7-C runs as follows: "If, in the opinion of the Vice-Chancellor, any emergency has arisen which requires immediate action to be taken, the Vice-Chancellor shall take such action as he deems necessary and shall report the same for approval at the next meeting to the authority which, in the ordinary course, would have dealt with the matter: Provided that, if the action taken by the Vice-Chancellor is not approved by the authority concerned, he may refer the matter to the Visitor, whose decision thereon shall be final: Provided further that, where any such action taken by the Vice-Chancellor affects any person in the service of the University, such person shall be entitled to prefer, within thirty days from the date on which he receives notice of such action, an appeal to the Executive Council." Thus it is apparent from the aforesaid provisions that the Vice-Chancellor has been empowered to take such action as he thinks necessary in an emergent situation requiring immediate and urgent action in the matter. For invoking emergency power, there must be an emergent situation in the opinion of the Vice-Chancellor requiring immediate action to be taken. Further, the Vice-Chancellor is required to report to the authority who is competent to deal with the matter in ordinary course, for its approval in the next meeting. In case the authority does not approve the action of the Vice-Chancellor, he can refer the matter to the Visitor whose decision in the matter shall be final. The second proviso contemplates that any person aggrieved by the order of the Vice-Chancellor may prefer an appeal before the Executive Council within a period of 30 days.;