D.N.CHOWDHURY, J. - (1.) The extent and content of power under sub-section (4) of Section 8-B of the Gauhati University Act, 1947 is the issue raised in this proceeding.
(2.) By an order dated 25.10.95, the petitioner was appointed as Treasurer of the Gauhati University for a period of five years from the date of joining or till the age of sixty years, whichever was earlier. It seems there was a serious controversy regarding the age of the petitioner and the University Workmen's Union, hereinafter referred to as the Union, agitated over the: matter . The matter was deliberated upon by the Executive Council and the Executive Council in its meeting resolved to superannuate the petitioner with effect from 1.1.98 on his attaining the age of superannuation. The petitioner was intimated about this decision by a letter dated 6.8.97 and advised him to explain as to why the above resolution should not be given effect to. By a letter dated 11.8.97, the earlier communication dated 6-8-97, was superseded and the petitioner was asked to show cause as to why actions, as proposed, should not be taken against him to implement the resolution of the Executive Council. The petitioner submitted his show cause. The Executive Council in addition, also heard the petitioner in person on 16-12-97 and thereafter by its resolution dated 26-12-97, revoked the earlier resolution dated 19-7-97, and decided to seek the opinion of the Advocate General. Accordingly, the Executive Council constituted a Committee to extend its assistance to the leaned Advocate General. The decision of the Executive Council was not to the liking of the Union and, therefore, the Union decided to continue with its agitation by a fresh programme and the University was accordingly informed by a Notice. Situated thus, the University by its office order dated 10.1.98 asked the petitioner to proceed on leave with effect from 10.1.98 until further orders. Subsequently, the Registrar by his letter dated 12.1.98, superseded his earlier office communication dated 10.1.98 and served the petitioner with the office order dated 12.1.98 as per order of the Vice Chancellor. The office order of the Vice Chancellor which is impugned in this writ proceeding reads as follows : "Whereas the University has not been functioning properly for a continuous period of time of more than two weeks and this time period has been a crucial one for taking emergent decision regarding administration, examination and other welfare measures concerning the students, the teachers, the workmen and officers and the University in general, Whereas the Vice-Chancellor is satisfied and is of the opinion that an emergency has arisen which requires emergent decision which are ordinarily taken by officers, authority or other body to deal with these measures, and whereas the Vice-Chancellor is empowered under Section 8 B(4) of the Gauhati University Act, 1947, as amended upto-date the following immediate action are taken :- In view of the present situation prevailing in the University, Sri Bhagirath Patowari presently working as Treasurer be asked to proceed on leave with immediate effect. Further, in exercise of powers conferred under Section-8B(4) of the Gauhati University Act, 1947, as amended upto date, the Vice Chancellor is satisfied that Shri Bhagirath Patowari, presently working as Treasurer be given compulsory retirement with effect from 10th January, 1998 (Afternoon). The Registrar is directed to take necessary action immediately. Sd/- H.L. Duorah Vice Chancellor, Gauhati University." The legitimacy of the aforesaid impugned order is assailed in this proceeding as being arbitrary, capricious and discriminatory. The power and the competence of the Vice Chancellor to compulsorily retire the petitioner is also questioned in this proceeding. Furthermore, the impugned order is also attacked on the ground of unauthorised and mechanical exercise of power, that too at the behest of the employees' Union.
(3.) The University contested the case, submitted its affidavit and defended its action. According to the University, the petitioner could not have continued in service and ought to have superannuated as far back as on 31st March, 1996 but for the deceitful act of the petitioner. In the Matriculation Certificate issued by the University on 4th July, 1955, the age of the petitioner was recorded as 18 (eighteen) years 11 (eleven) months on 1st March, 1955, Subsequently, the petitioner managed correct his age showing as 13 (thirteen) years 10 (ten) months and 16 (sixteen) days as on March, 1955 by playing fraud. The Union coming to know about rectification of the age of the petitioner, requested the University authority for appropriate action and accordingly adopted and forwarded a resolution to that effect. The University took a resolution on 9-12-97 requesting the Executive Council, hereinafter referred to as the EC, to finally settle the issue regarding service tenure of the petitioner. The EC accordingly on 19.7.97, decided to superannuate the petitioner with effect from 1.1.98 on his attaining the age of superannuation. Accordingly, notice was issued to the petitioner asking him for his explanation. The respondents considered the Show Cause reply and also heard the petitioner-in-person; and thereafter, decided to revoke the earlier decision dated 19.7.97 and decided to refer the entire matter to the learned Advocate, General for his opinion.;