Bombay High Court
Vidarbha Vikas Mahila Bal vs State Of Maharashtra on 9 April, 2014
Author: Av.Nirgude
Bench: Av.Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.5505 OF 2013
1. Vidarbha Vikas Mahila Bal
Kalyan Shikshan Sanstha,
Shastri Nagar, Akola,
Through it's Secretary,
Shri Ganesh Shyamrao Borkar,
Age : Major, R/o. Shastri Nagar,
Akola-444 005, Distt. Akola.
2. Akola College of Journalism,
Shastri Nagar, Akola,
Through it's Principal/
Office Superintendent,
Akola-444 005, Distt. Akola. : PETITIONERS
...VERSUS...
1. State of Maharashtra,
Through it's Secretary,
Department of Higher and Technical Education,
Mantralaya, Mumbai-32.
2. Sant Gadge Baba Amravati University,
Through it's Vice-Chancellor,
Amravati, Distt. Amravati.
3. The Academic Council,
Sant Gadge Baba Amravati University,
Through it's Chairman, Amravati,
Distt. Amravati.
4. The Board of College and University,
Sant Gadge Baba Amravati University,
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through it's Chairman, Amravati,
Distt. Amravati. : RESPONDENTS
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Mr. R.J. Mirza, Advocate for the Petitioners.
Mr. A.D. Sonak, AGP, for the Respondent No.1.
Mr. J.B. Kasat, Advocate for the Respondent No.2.
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CORAM : AV.NIRGUDE, J.
th
DATE : 9
APRIL, 2014.
ORAL JUDGMENT :
1. By consent, petition is taken up for final hearing.
2. Rule.
3. This petition challenges the decision taken by the respondent No.3-Academic Council, Sant Gadge Baba Amravati University, Amravati under Section 91 of the Maharashtra Universities Act, 1994 (in short, "the Act") withdrawing affiliation of a particular course started by petitioner No.2- College.
4. The petitioner No.1 is an education society, it runs petitioner No.2-College at Akola. In this College there are several courses conducted. One of the courses was B.A. (Social Work), it started in 2010. Before starting this course, the petitioners sought affiliation of respondent No.2-University.
::: Downloaded on - 26/04/2014 23:37:51 ::: wp5505.13.odt 3/10Having regard to the provisions of Section 81 of the Act the University gave affiliation. After getting affiliation the petitioner No.2 started admitting students for this course and the course continued. It was a course of three years. At the end of the course a students would get degree of Bachelor of Social Work. In the year 2013, it was revealed that the petitioner No.2 gave admissions to two students in second year of the course mentioned above, though the students had completed one year of the course by name B.S.W. (Bachelor of Social Work) from different college. These students then continued their education in the second year and when their examination forms forwarded to the University, the University rejected it. They were not permitted to appear for B.A. (Social Work) second year Examination. One of them came to this Court in writ petition and in view of this anomaly an action under Section 91 of the Act was initiated against the petitioners. Section 91 reads as under :-
"91. Withdrawal of affiliation or recognition.
(1) If an affiliated college or recognised ::: Downloaded on - 26/04/2014 23:37:51 ::: wp5505.13.odt 4/10 institution fails to comply with the conditions of affiliation or recognition as provided in section 81 or to allow the local managing or advisory committee as provided in Section 85 to function properly or to take action as per directions issued under the Act or if it is conducting the college or recognised institution in a manner prejudicial to the interest of the university or the standards laid down by it, the Board of College and University Development may issue a notice to the management to show cause as to why the privileges conferred on the college or recognised institution by affiliation or recognition should not be withdrawn in part or in whole or modified.
(2) The Board of College and University Development shall mention the grounds on which it proposes to take the above mentioned action and shall send a copy of the notice to the principal of the college, or head of recognised institution. It shall also specify in the notice, the period being a period which shall not be less than thirty days within which the management should file its written statement in replay to the notice.
(3) On receipt of such written statements or on expiry of the period specified in the notice issued under sub-section (1), the Board of Collage and University Development shall place before the Academic Council, the notice and the written statements, if any, with or without the motion for withdrawal or modification of such privileges.
(4) The Academic Council shall having regard to the interest of students studying in the colleges or recognised institution, recommend to the Vice-Chancellor or the action to be taken in ::: Downloaded on - 26/04/2014 23:37:52 ::: wp5505.13.odt 5/10 this behalf and the Vice-Chancellor shall, thereafter, proceed to implement the recommendations."
5. The respondent No.4 sent a show cause notice to the petitioner No.2, to which they submitted a reply in writing. On receipt of such written statement the notice as well as written statement was placed before the Academic Council. The Academic Council then recommended withdrawal of affiliation of the course run by petitioner No.2. This action is challenged mainly on the ground that the action was taken without following principles of natural justice.
6. The question that is required to be decided in this petition is whether Section 91 contemplated personal hearing before the Academic Council makes its recommendation as provided in sub-section 4. No doubt Section 91 does not speak about giving of personal hearing. I am told that Academic Council consists of about 75 members, who reside all over India. I am told that the impugned decision was taken when as many as 64 members of the Academic Council attended the ::: Downloaded on - 26/04/2014 23:37:52 ::: wp5505.13.odt 6/10 meeting. The recommendation, withdrawing affiliation nonetheless permitted the petitioner No.2-College to continue the course untill the present students completed their course and I am also told that in the history of University this could be the first instance of withdrawal of affiliation. The petitioner pleaded and I am inclined to believe that the impugned decision involves civil consequences. The petitioner No.2- College would be required to reduce number of teaching and non-teaching staffs if this course is closed. Besides the income of the college would be reduced if new students are not admitted. The record also shows that as many as 80 students were permitted to take admission for the first year course every year.
7. In view of these facts, there is no doubt that withdrawal of affiliation would result into adverse civil consequences. In similar situation, arising from Section 57 of the Act, the Division Bench of this Court in the case of Shri Saibaba Gramin Vikas Sanstha, Gadchiroli and another vs. Rashtrasant Tukdoji Maharaj Nagpur University and others, ::: Downloaded on - 26/04/2014 23:37:52 ::: wp5505.13.odt 7/10 reported in 2011(3) Mh.L.J. 790 took a view that personal hearing is necessary though the statutory provision does not spell it out clearly before taking penal action. So far I am told no judgment on this section is delivered by any Court. In my view, rules of natural justice were required to be followed in this case. An opportunity of hearing should have been given to the petitioner No.2 before the Academic Council. In the judgment of Supreme Court in the case of Canara Bank & others vs. Debasis Das and others, reported in (2003) 4 SCC 557 it was held that an employee subjected to disciplinary proceedings deserves hearing. The Supreme Court reiterated the principle that 'natural justice is the administration of justice in a common sense liberal way'. The Supreme Court also held that such rules are required to be in force to ensure substantial justice being done to the party, who is proceeded against.
8. In the facts and circumstances of this case, Section 91 by necessary implication includes personal hearing to the affected party before adverse recommendation is made.
Learned counsel for the respondents on the other hand ::: Downloaded on - 26/04/2014 23:37:52 ::: wp5505.13.odt 8/10 suggested that since the provision does not provide personal hearing, it is impliedly barred. He also suggested that only opportunity that is provided to the affected party was 'making submission in writing'. According to him, making written submission in reply to the notice is sufficient compliance of principles of natural justice. In other words, he suggested that making submission in writing is nothing less than making oral submissions before the Academic Council. If one carefully goes through the provision of Section 91, this submission would be found to be futile. Section 91 contemplates issuance of show cause notice by the Board first. Then comes stage of submission of written reply. Thereafter the notice as well as written reply is placed before the Academic Council. The Academic Council is not party to process of issuance of show cause notice and receipt of reply. This is done at the level of the Board which is a local body of the University. The show cause notice is required to be given mentioning details of the allegations. It is thus clear that the show cause notice is like a charge sheet and the written reply would come as evidence and ::: Downloaded on - 26/04/2014 23:37:52 ::: wp5505.13.odt 9/10 argument in defence. The Board after receipt of reply in writing does not decide the case at all. So, the decision is left to the Academic Council. As said above, there are number of members in Academic Council and there is thus possibility of difference of opinion between the members as what action should be taken against a delinquent College/institution. In a situation of this nature and when adverse civil consequences were likely to take place it would be beneficial even for the decision making authority, namely, Academic Council if a representative of delinquent College/institution is permitted to make oral submission at the time of the meeting.
9. Following observations of the Supreme Court in the case of Chairman, Board of Mining Examination and Chief Inspector of Mines and another, reported in (1977) 2 SCC 256 are relevant on this subject.
"........Natural justice is no unruly horse, no lurking land mine, nor a judicial cure- all. If fairness is shown by the decision-maker to the man proceeded against the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no ::: Downloaded on - 26/04/2014 23:37:52 ::: wp5505.13.odt 10/10 breach of natural justice can be complained of.
Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt-
that is the conscience of the matter."
10. Therefore, I also hold that Section 91(4) contemplate personal hearing before the Academic Council.
11. The petition should succeed.
12. The impugned decision of the Academic Council is set aside.
13. The order of withdrawing affiliation is set aside.
14. The respondents shall give an opportunity of hearing to the petitioners before the Academic Council in their next meeting.
15. This shall be done as soon as possible preferably before 1st June, 2014.
JUDGE DWW ::: Downloaded on - 26/04/2014 23:37:52 :::