Allahabad High Court
Chandrashekhar Tiwari vs State Of U.P. And 5 Others on 7 February, 2023
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 21 Case :- SPECIAL APPEAL No. - 70 of 2023 Appellant :- Chandrashekhar Tiwari Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Siddharth Khare Counsel for Respondent :- C.S.C.,Hritudhwaj Pratap Sahi Hon'ble Manoj Kumar Gupta,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
1. Heard Sri Siddharth Khare, counsel for the appellant, learned Standing Counsel for the State respondents and Sri G.K. Singh learned Senior Counsel assisted by Sri H.P. Sahi for respondent Nos. 5 and 6.
2. This intra-court appeal arises out of judgment and order dated 19.12.2022 passed by learned Single Judge in Writ-C No. 37460 of 2022 filed by respondent Nos. 5 and 6 (hereinafter referred to as 'the petitioners').
3. The petitioners in the Writ Petition were the Committee of Management of Goswami Tulsi Das Inter College, a recognized Institution under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act') and its Manager (respondents no.5 & 6 in the instant appeal). They had, in the writ petition, assailed the order dated 04.11.2022 passed by the State Government superseding the Committee of Management in exercise of power under Section 16-D(4) of the Act. The writ petition has been allowed on the sole ground that opportunity of hearing was not afforded to the petitioners by the State Government while superseding the Management. The Writ Court has quashed the order impugned in the writ petition and has remitted the matter back to the State Government for passing a fresh order after affording opportunity of hearing to the writ petitioners.
4. The brief facts of the case are that the appellant herein (respondent No. 5 in the writ petition) had made complaint against the petitioners and on basis thereof, the Director of Education, on 27.05.2021, recommended to the State Government to supersede the Committee of Management and appoint an Authorized Controller in its place.
5. In pursuance thereof, it seems that the Special Secretary (Secondary Education) heard the parties on 24.06.2021 and 28.12.2021. The petitioners filed a detailed objection on 28.12.2021 to the charges levelled against the Committee of Management and the appellant also filed his reply on the same date. The State Government vide its letter dated 31.12.2021 forwarded the reply submitted by the Committee of Management and the appellant dated 28.12.2021 for factual examination and recommendation by the Director (Secondary) U.P. In pursuance thereof, the Director (Secondary) U.P. obtained reports from the Joint Director of Education, Gorakhpur and District Inspector of Schools, Kushinagar wherein they recommended for superseding the Committee of Management in exercise of power under Section 16-D (4) of the Act on three charges mentioned therein. It was followed by passing of the order impugned in the writ petition dated 4.11.2022 relying on the recommendation of the Director of Education, (Secondary), Uttar Pradesh dated 21.03.2022.
6. Learned counsel for the appellant vehemently contended that the impugned order of learned Single Judge proceeds on a wrong assumption of fact that opportunity of hearing was not given to the petitioners before superseding the Committee of Management. In support of his contention he has placed reliance on the recitals contained in the impugned order to the effect that the Special Secretary (Secondary Education), U.P. heard the parties on 24.06.2021 and 28.12.2021.
7. He has also invited the attention of the Court towards a notice dated 16.03.2022 issued by Deputy Secretary, U.P. Government addressed to Director of Education (Secondary) and District Inspector of Schools, Kushinagar with copy thereof endorsed to the Manager, Committee of Management of the Institution fixing 21.03.2022 as date for hearing in connection with the proceedings relating to appointment of Authorized Controller. It is submitted that the said communication further reveals that yet another opportunity of hearing was given to the parties on 21.03.2022 and thus it is submitted that learned Single Judge committed an error apparent on the face of record in remitting the matter back to the State Government for affording opportunity of hearing to the writ petitioners.
8. Sri G.K. Singh, learned Senior Counsel, appearing for the petitioners, submitted that the hearing which was afforded to the parties on 24.06.2021 and 28.12.2021, was not sufficient, inasmuch as the recommendation for superseding the Committee of Management was made by the Director of Education subsequently, vide its letter dated 21.03.2022 and thereafter no opportunity of hearing was granted. He further submits that the petitioners were never served with any notice dated 16.03.2022 fixing 21.03.2022 as date of hearing, nor any hearing took place on that date.
9. Sri Siddharth Khare, learned counsel for the appellant submitted that the Director of Education initially made a recommendation for superseding the Committee of Management vide its letter dated 27.05.2021 and consequently the hearing held on 24.06.2021 and 28.12.2021 was sufficient and the writ petitioners cannot complain of breach of principles of natural justice. He submits that although Director of Education (Secondary) made another recommendation on 21.03.2022 for superseding the Committee of Management but it was based on same charges and, therefore, no fresh opportunity of hearing was required to be given to the writ petitioners.
10. Sri G.K. Singh, learned Senior Counsel appearing for the petitioners, in reply submitted that the procedure adopted by the State Government after the hearing took place on 28.12.2021 was in gross violation of principles of natural justice. It is submitted that the State Government called for a report from Director of Education (Secondary) in context of the reply submitted by the petitioners and the appellant and thereafter based on his recommendation contained in letter dated 21.03.2022, proceeded to pass the impugned order without supplying its copy to the petitioners.
11. In other words, the submission is that when there was a fresh recommendation by Director of Education by letter dated 21.03.2022, which alone had been made basis for passing the impugned order, it was incumbent upon the State Government to have afforded fresh opportunity of hearing to the petitioners. He further submits that even otherwise, the impugned order is bad in the eyes of law, inasmuch as it does not take into consideration the detailed reply submitted by the petitioner on 28.12.2021 denying each and every charge levelled against the Committee of Management of the Institution.
12. We have considered the rival submissions and perused the material on record.
13. The Writ Court while remitting the matter to the State Government has placed reliance on a judgment of learned Single Judge in Committee of Management, Gautam Buddha Inter College and Another Vs. State of U.P. & 4 Others1, wherein it has been held that although the statute provides for opportunity of hearing at the stage of enquiry by the Director but in case there is recommendation by the Director to supersede the Committee of Management, it is implicit in the provision that the State Government would accord hearing to the affected parties before it supersedes the Committee of Management. This is necessary, in view of the fact that the decision making authority is the State Government and it is enjoined with duty to record reasons for supersession of the Committee of Management. The relevant observations are extracted below:-
"10. In my opinion, it would be incumbent upon the State Government to issue notice to the aggrieved party to show cause before passing an order on the recommendation of the Director. The decision making authority is the State Government and not the Director. Aggrieved party would have every right to show cause before the State Government, contending that the recommendations made by the Director are either incorrect or per se perverse. It would, therefore, be incumbent upon the State Government to pass suitable order considering the objections. It is immaterial whether the Committee of Management has appeared before the Director pursuant to the show cause notice under sub-section (3). Principle of natural justice would have to be read into sub-section (4) to uphold the vires of the section.
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18. Notwithstanding, the fact that the sub-section (4) does not contain any express provision for the affected party being given an opportunity of being heard. Undoubtedly, action under the said sub section is a function which involves due application of mind to the facts as well as to the requirements of law. Therefore, it is plain that before acting upon the recommendation of the Director, State is bound to put the aggrieved party to notice. Civil consequence of superseding the Committee of Management follows the decision of the State Government and not of the Director."
14. Sri G.K. Singh, learned Senior Counsel for the petitioners has not disputed before us that the State Government heard the parties on 24.06.2021 and 28.12.2021. He also does not dispute that the hearing on the aforesaid dates was preceded by a recommendation dated 27.05.2021 by the Director of Education (Secondary), Uttar Pradesh for superseding the Committee of Management in exercise of power under Section 16-D(4) of the Act.
15. The purpose of affording hearing is to provide opportunity to the Committee of Management to place its defence in context of the recommendation made by the Director of Education. It would get opportunity to impress upon the State Government that on the basis of material available on record, the law does not warrant appointment of an Authorized Controller.
16. Albeit, in the instant case, there was a previous recommendation superseding the Committee of Management, followed by hearing, but thereafter, as is evident from the impugned order, the State Government instead of applying its own independent mind to the objection submitted by the petitioners and taking decision in the matter, called for a fresh report from the Director of Education (Secondary). He, in turn, called for the comments from the Joint Director of Education, Gorakhpur and District Inspector of Schools, Kushinagar and submitted a fresh recommendation on 21.03.2022. Based on the same, the State Government had proceeded to supersede the Committee of Management. The order does not indicate that the fresh recommendations and the reports called for, were made available to the petitioners, as specifically pleaded in paragraphs 48 and 49 of the writ petition and which fact is not disputed by counsel for the appellant and learned Standing Counsel.
17. Additionally, there is no indication in the impugned order that any consideration was given to the detailed reply submitted by the petitioners denying each and every charge levelled against them. The State Government under law is empowered to supersede the Committee of Management by an order 'for reasons to be recorded'. The State Government was thus enjoined with the duty to consider the reply and give reasons for not accepting the reply, which has not been done.
18. A perusal of the impugned order reveals that the State Government has not even alluded to the reply submitted by the petitioners dated 28.12.2021 and merely, relying on the recommendation made by the Director of Education dated 21.03.2022 had superseded the Committee of Management. This, in our opinion, has also resulted in gross violation of the principles of natural justice.
19. For the reasons given in the order of learned Single Judge and for additional reasons recorded by us, we decline to interfere in the matter.
20. The appeal lacks merit and is accordingly dismissed.
21. No order as to costs.
(Syed Qamar Hasan Rizvi, J.) (Manoj Kumar Gupta, J.)
Order Date :- 7.2.2023
Ruhi