Allahabad High Court
Committee Of Management, Shri Chameli ... vs State Of U.P. And Ors. on 24 January, 2005
Equivalent citations: 2005(1)ESC615
Author: V.K. Shukla
Bench: V.K. Shukla
JUDGMENT V.K. Shukla, J.
1. Committee of Management, Shri Chameli Devi Khandelwal Girls Inter College, Vrindavan Road, Mathura, through its Manager Smt. Ratan Prabha Khandelwal, is assailing the validity of the order dated 21.6.2004 passed by U.P. Secondary Education Service Selection Board, Allahabad, rejecting the resolution of dismissal forwarded by the Managing Committee of the institution qua Km. Sarojini Barsol, Principal of the institution.
2. Brief facts, as mentioned in the writ petition, is that in the district of Mathura, there is an institution known as Shri Chameli Devi Khandelwal Girls Inter College, Vrindavan Road, Mathura, the affairs of which are run and managed as per provisions contained under U.P. Intermediate Education Act, 1921, and the Regulations framed thereunder, and as per provisions contained under U.P. Secondary Education Service Selection Board Act, 1982. In the institution concerned, Km. Sarojini Barsol had been discharging her duties as lecturer and subsequently, she was selected as Principal of the aforementioned institution by the U.P. Secondary Education Service Selection Board, Allahabad. Against the aforesaid incumbent various charges had been levelled, and on the basis of the same, she was sought to be placed under suspension by means of resolution dated 11.1.2001. Said suspension was communicated by means of order dated 12.1.2001, and the said suspension letter was followed by charge-sheet dated 12.1.2001, and the said suspension letter was followed by charge-sheet dated 23.1.2001. It has been asserted that thereafter various opportunities were provided to Km. Sarojini Barsol, but at no point of time she ever availed of the aforementioned opportunity to appear before the Enquiry Committee and to submit her explanation and lead evidence in rebuttal of the charges. The Enquiry Committee submitted its report dated 11.3.2001 finding charges as proved and recommended for termination of respondent No. 5 from service. Thereafter Managing Committee of the institution, passed resolution for dispensing services with effect from 12.3.2001. Letter dated 9.3.2001 sent by Km. Sarojini Barsol is also alleged to have been considered and rejected on 12.3.2001. It has also been alleged that notice of termination was published in newspaper. Entire papers were transmitted to the U.P. Secondary Education Service Selection Board, Allahabad for approval in terms of Section 21 of U.P. Act No. 5 of 1982. The said Board in its turn issued notice on 10.10.2002, pursuant to which Km. Sarojini Barsol submitted her reply on 22.10.2002. Thereafter, 7.1.2003 was the date fixed and on the said date Km. Sarojini Barsol appeared, but no one appeared from the side of management. Thereafter on the next date of hearing 12.3.2003, representative of the management appeared but no one appeared from the side of Km. Sarojini Barsol. Thereafter, on 22.4.2003, it has been contended that both the parties were heard separately, and the impugned order in question has been passed on 21.6.2004, which is subject matter of challenge before this Court.
3. To this writ petition counter affidavit has been, filed, and therein, it has been submitted that Enquiry Committee was not at all constituted in consonance with law, and further the charge-sheet, which was submitted, did not contain signature of Sri Krishna Todwal, and further it has been contended that full-fledged opportunity of hearing had been provided for before passing of impugned order and the order impugned does not suffer from any infirmity, whatsoever. It has also been contended that she is being harassed and victimised, and the charges relate to the period when she was functioning as lecturer in the institution. It has also been asserted that reply submitted by her had been received by petitioners. Report of the Principal, Government Inter College, Mathura dated 11.1.2002 had also been appended with the reply, which was submitted pursuant to show cause notice.
4. Supplementary affidavit has been filed, and therein facts have been mentioned in respect to objections which had been raised by the auditor and the details thereof, and further details in respect to insubordination has also been sought to be magnified. Rejoinder affidavit has also been filed and the statement of fact mentioned in the counter affidavit of Km. Sarojini Barsol has been rebutted, and it has been contended that charges were fully established and brought home, and the principles of natural justice has been flouted with impunity, and further Board has failed to afford opportunity to both the sides.
5. After respective pleadings have been exchanged, original record pertaining to disciplinary proceedings have been summoned from the U.P. Secondary Education Service Selection Board, and thereafter, present writ petition has been taken up for final hearing and disposal, with the consent of the parties.
6. Sri Shailendra, learned Counsel representing the management, has assailed the validity of the impugned order on the ground that at no point of time Km. Barsol had ever appeared before the Enquiry Committee, and for the first time she had submitted her reply before Board, then in that event copy of the aforementioned reply ought to have been supplied to the petitioners in order to enable them to rebut the facts mentioned therein, and in the present case, this is an undisputed fact that, copy of the aforementioned reply had not been supplied, and as such, principles of natural justice has been violated with impunity, and the order impugned is liable to be quashed. It has also been contended that in the present case, the Board has transgressed and over stepped its jurisdiction, inasmuch at no place any finding has been recorded that principles of natural justice has been violated, and without recording this finding, on the basis of material supplied, charges could have been re-examined, as such by no means, order impugned could not have been passed, as such also impugned order is liable to be quashed.
7. Sri R.P. Dubey, learned Counsel appearing on behalf of the Board as well as Sri Vashishtha Tiwari, representing Km. Sarojini Barsol, submitted that petitioners were fully satisfied with the hearing which had taken place on 22.4.2003, and in lieu of this satisfaction signatures were also appended. Petitioners are fully aware of the reply submitted, and as such, plea of violation of principles of natural justice is not at all attracted in the present case, as entire actions of petitioners were motivated, as such writ petition is liable to be dismissed.
8. In order to appreciate respective arguments, apart from pleadings original records were also summoned. The record in question reveals that after entire papers had been transmitted to U.P. Secondary Education Service Selection Board, Allahabad, the first date fixed in the matter was 7.1.2003. On the said date Km. Sarojini Barsol was present. However, representative of the management has been shown to be absent. The order sheet bears signatures of both the members, who were conducting the hearing. Thereafter, the next date fixed in the matter was 12.3.2003. On the said date representatives of the management Sri Narendra Khandelwal and Sri Krishna Todwal appeared. The next date fixed in the matter had been 22.4.2003. The order sheet of the said date reflects that both the sides have been heard and even provided full opportunity and have been shown to be satisfied with the hearing. In lieu of this both the sides have appended their signatures. The order sheet does not reflect as to whether hearing was done simultaneously or separately. However, one fact is fully reflected from the original record produced that copy of reply dated 22.10.2002 and the copy of reply, which was submitted on 22.4.2003 at no point of time had even been made available to petitioners. Both the replies form part of record, and there is nothing on record to presume that copy of the aforementioned replies had been supplied to petitioners in order to enable them to know the contents of the replies so submitted.
9. As far as approval under Section 21 of the Act is concerned, the said exercise has to be undertaken by the Board on the papers being transmitted in terms of the provisions as contained under the U.P. Secondary Education Service Commission (Procedure for Approval of Punishment) Regulation, 1985 for ready reference Section 21 of the Act and the Regulations 4, 5, 6, 7 and 8 of the aforementioned regulations are being quoted below :
U.P. Act No V of 1982 "21. Restriction on dismissal etc. of teachers.--The Management shall not except with the prior approval of the Board dismiss any teacher or remove him from service or serve on him any notice of removal from the service or reduce his emoluments or withhold his increment for any period (whether temporary or permanent) and any such thing done without such prior approval shall be void."
U.P. Secondary Education Service Commission (Procedure for Approval of Punishment) Regulation, 1985 :
"4. Proceeding to be completed.--Before submitting cases to the Commission for approval of the Commission under Sub-section (1) of Section 21, the management shall complete all proceedings as per procedure prescribed in Intermediate Education Act, 1921 or the rules, if any, and regulations made thereunder or orders issued by the Education Department and/or Board of High School and Intermediate Education, U.P., from time to time in regard to any action mentioned in Sub-section (1) of Section 21 of the Act, proposed to be taken.
5. Documents to accompany.--Such case shall be submitted to the Commission through the Inspector and while submitting cases to the Commission, the following documents will invariably be submitted to the Commission :
(i) copy of the resolution of management of setting up the inquiry committee;
(ii) charge-sheet prepared and served on the teacher;
(iii) explanation furnished by the charged teacher in reply to the charge-sheet.
(iv) full record of proceedings including evidence taken and cross-examination if any done and personal hearing, if any, given by the Inquiry Committee appointed for the purpose;
(v) report of the Inquiry Committee;
(vi) proposal in regard to the punishment to be inflicted;
(vii) copy of the resolution adopted by the management in regard to the proposed punishment;
(viii) up-to-date service book and character roll of the charge-sheeted teacher.
6. Inspector to forward the papers.--The Inspector shall ensure that the documents are complete as required in Regulation 5 and shall forward the same ordinarily within thirty days from the date of receipt of the papers in the first instance from the management. He may point out defects, if any, in the proceedings of the management.
7. Power of Commission to call for documents.--The Commission may call for any documents considered relevant to the case from the management or the Inspector.
8. Disposal by Commission.--The Commission shall after due consideration approve or disapprove the punishment proposed or may issue any other directions may be deemed fit in the case."
10. A bare perusal of the provisions as contained under Section 21 of the Act would go to show that management has the authority to impose punishment, but the said punishment is of no consequence till it is approved by the U.P. Secondary Education Service Selection Board. The resolution passed by the Committee of Management will get life only when approval is accorded to the same. Approval is not a mere formality, rather the Commission has to apply its mind to the facts and circumstances of the case and the material on record with a view to determine as to whether or not Managing Committee of the institution has acted in consonance with the principles of natural justice and awarded punishment commensurate to the charges found proved. Section 21 has been inserted to check the arbitrary exercise of power vested in the Management. Regulations have been framed by the Board, with the approval of State Government, for discharging its duties and performing its functions under the Act, in exercise of power vested under Section 34 of U.P. Act No. V of 1982. Regulation 4 of the aforequoted Regulations talks of obligation cast upon the Management of the institution while submitting papers to the Commission. Regulation 5 deals with documents which are to be forwarded to the Commission and agency through which said documents are to be transmitted. Regulation 6 prescribes that Inspector shall ensure that the documents are complete as referred to in Regulation 5 and forward the same ordinarily within thirty days from the date of receipt of the papers. District Inspector of Schools has been further obliged to point out defects, if any, in the proceedings of the management. The object of this particular provision is that it gives an opportunity to the District Inspector of Schools to see that if there is any defect in the proceedings of the management, he shall point out the same and same can be perused by the U.P. Secondary Education Service Selection Board at the point of time of according approval. This power does not confer any authority on the District Inspector of Schools to withhold the papers and he has to transmit the same ordinarily within thirty days. In case District Inspector of Schools is satisfied that there are defects in the proceedings then he can make a separate note of the same and forward the same. Regulation 7 gives unfettered power to the Board to call for any documents considered relevant to the case from the management or the Inspector. Regulation 8 deals with disposal by Commission and the powers of the Commission which is to be exercised after due consideration. Due consideration enjoins duty on the Commission to either approve or disapprove or issue any other direction on the punishment proposed on the papers as submitted before it. Thus, the scheme of the Act and Regulations are very clear and categorical that after due consideration decision has to be taken by the Commission.
11. Now taking the case in hand, this is undisputed fact that at no point of time Km. Sarojini Barsol appeared before the Enquiry Committee, and in her absence decision was taken and it was resolved that her services be dispensed with. U.P. Secondary Education Service Selection Board was enjoined to take decision on the papers as referred to in Regulation 5, and in case, the Board was of the view that any other document was relevant to the case, and then the said document could have been called for from the management or from the Inspector. The scheme of Regulation is thus clear and categorical that decision has to be taken on the papers as described under Regulation 5 arid any other document considered Relevant had to be asked for by the Board from the management or the Inspector. The scheme of the Regulation does not say that charged employee has been vested with any authority to submit his/her reply for the first time before the U.P. Secondary Education Service Selection Board, and thereafter, the Board has to base its decision on the same. Regulation 7 gives authority to the Board to call for documents considered relevant to the case from the management or from the Inspector, but it does not authorise the Board to call for any documents from the incumbent. However, this does not mean that in case document considered relevant has been called for, under Regulation 7 then no opportunity should be provided to the incumbent. In case document referred to in Regulation 7 are called upon, then in that event the said document has to be supplied to the incumbent/charged employee for rebuttal of the same, but straightaway for the first time no reply can be entertained by the Board. An incumbent, who has not taken the risk of not appearing before the Enquiry Committee, cannot be permitted to submit his/her reply to the charges for the first time before the Board. The Board will have to act within the four corners of statutory provisions. Its decision has to be based on the documents referred to in Regulation 5, defects pointed out by the District Inspector of Schools under Regulation 6 and on the additional documents considered relevant and called for from the management or from the Inspector under Regulation 7 and reply to the same. Placing reliance on any other document is totally impermissible under the scheme.
12. This Court in the case of Managing Committee, Gochar Krishi Inter College, Rampur Manihanr, District Saharanpar and Ors. v. U.P. Secondary Education Service Selection Board Allahabad and Ors., 2002 (1) ESC 355, has taken the view that if Selection Board is satisfied that charged employee has not been afforded adequate opportunity to defend himself/herself, then in exercise of power vested under Regulation 8, the matter could have been remitted back. U.P. Secondary Education Service Selection Board has got no authority to accept the reply of charged employee and consider each and every charge on merit as disciplinary authority.
13. This Court in the case of P.K. Jain v. U.P. Secondary Education Service Commission. 1997 (2) ESC 847 has taken the view, that under Regulation 8, Commission has the authority to modify the punishment, as well, after due consideration of the material available on record, on account of phrase "or may issue any other directions deemed fit, in the case."
14. The Hon'ble Apex Court in the case of Committee of Management, Bishambhar Saran Vaidic Inter College v. U.P. Secondary Education Service Commission, 1996 (2) ESC 230, has taken the view that while exercising power under Section 21, Commission in respect to grant or not to grant approval is enjoined upon duty to go into the merits of the case and apply its mind independently to the question whether evidence on record justified removal or not. The Commission has been described as high powered body and as a body entrusted with the main function of supervising the actions taken by the management: against teachers, and in this background, it has been mentioned that the Commission has to discharge its responsibility circumspectively and the Commission cannot exercise its function effectively unless it scrutinizes the material and applies its mind carefully to the fact on record. This judgment does not authorise, however, taking of fresh evidence. Division Bench of this Court, in the case of Rajendra Lal Srivastava v. Secondary Education Service Commission, 2003 (1) ESC 74, has taken the view that Commission is not hearing an appeal to the proposal of Management. The Commission is not acting like a superior or higher Court for correcting or rectifying the decision of Lower Court, but is merely consenting to some act or thing done by another viz. the Management of the institution.
15. Said Division Bench judgment of Rajendra Lal Srivastava v Secondary Education Service Commission, 2003 (1) ESC 74, and judgment of Hon'ble Apex Court in the case of Committee of Management, Bishambhar Saran Vaidic Inter College v. U.P. Secondary Education, 1995 (Supp) 3 SCC 244, has been followed in the case of Committee of Management, M.M.I.C. v. S.E.S.C., 2004 (1) UPLBEC 20 and it has been reiterated that Commission/Board is to apply its mind independently to the question whether the evidence on record justified the removal or not, and in this regard has to carefully apply its mind to the facts on record and merit of action taken then it can also direct for lesser punishment, if case so justified. These judgments, nowhere subscribe the view that fresh evidence can be entertained, qua the charges levelled.
16. Thus, inevitable conclusion is that in exercise of power under Section 21 of U.P. Act. No. 5 of 1982, Board has got the authority to scrutinize the evidence and to see as to whether charges are established or not and whether punishment proposed is commensurate to the charges levelled or not and whether principles of natural justice has been complied with or not. Nowhere an incumbent, who has not participated in the disciplinary proceeding, has been permitted to submit his/her reply directly before the U.P. Secondary Education Service Selection Board, for the first time, qua the charges and neither the Board is enjoined upon to the act as Enquiry Officer. The authority of the Board to scrutinize the evidence qua charge-sheet and the reply, if any, submitted in enquiry, evidence recorded is not disputed, as same would be in consonance with the provisions of Regulation 8, which obligates the Board to take decision, after due consideration of material on record. Due consideration is possible only in the contingency, when Board goes through the entire record, scrutinise the record, and the merit of action taken. U.P. Secondary Education Service Selection Board has been vested with the authority to approve or disapprove the resolution of punishment on the basis of the material as referred to in Regulation 5 or on the basis of report appended by the District Inspector of Schools as contained in Regulation 6 or on the basis of the documents called for under Regulation 7, and apart from this, the Board is not at all enjoined upon to take reply to the charges from the charged employee for the first time before the Board and to proceed to act as Enquiry Officer. Such an action is totally beyond the scheme. The Board is obliged to take decision as provided for in the Regulations. The consistent practice, which is being followed by the Board is, that after complete papers as mentioned in Regulations are received, the matter is placed before sub-committee constituted by Board. The sub-committee, issues notice to the charged teacher and also to the management and after affording opportunity of personal hearing gives its report. This report is then placed before the Board for approval. The sub-committee, while issuing notice calling for the reply, from the charged employee is not entitled to take fresh evidence qua the charges levelled. Reply, if any, is to be filed, the same has to be qua the documents referred to in Regulations 5, 6 and 7 not beyond it. In case there has been violation of natural justice and entire action smacks of malafides or motives the same can be pointed out in the reply so submitted, however fresh evidence in rebuttal of the charges is not permissible specially when delinquent has chosen not to appear before the enquiry committee. Thus, the decision making process in the present case is faulty, on the fact of it, and same cannot be subscribed.
17. Apart from this once reply has been submitted by charged employee before the Board, then it was incumbent and obligatory on the part of sub-committee to ensure that copy of said reply has been served on the employer in order to enable the employer to be aware of the material being relied upon by the charged employee, and to rebut the same. Here copy of reply has not at all been supplied and said reply has been relied upon while passing impugned order, as such principles of natural justice, in the fact of the present ease has been violated, and mere mentioning that parties were satisfied with hearing, will not improve the situation by any count and means.
18. In view of what has been stated above, writ petition succeeds and is allowed. The order dated 21.6.2004 passed by U.P. Secondary Education Service Selection Board, Allahabad, is quashed and set aside. U.P. Secondary Education Selection Board is directed to take up the matter afresh, and proceed to pass fresh order within period of three months from the date of presentation of certified copy of the order. Both petitioner as well as contesting respondent shall appear before the Board on 8.2.2005, on which date documents, inter se parties be exchanged, and thereafter matter be decided on the same date or on subsequent date, keeping in view observation made above, within the time limit, as already specified above.
No order as to cost.