Gauhati High Court
Shri Bindeshwar Roy vs The State Of Meghalaya & Ors on 31 May, 2011
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;
MANIPUR; TRIPURA; MIZORAM AND ARUNACHAL
PRADESH)
SHILLONG BENCH
W.P(C) (SH) No. 239/2008
Shri Bindeshwar Roy,
S/o. (L) Mahvir Roy,
R/o. Lower Risa Colony
Shillong, East Khasi Hills District
Meghalaya
.........PETITIONER
-VERSUS-
1. The State of Meghalaya
Represented by the Commissioner
Secretary to the Govt. of Meghalaya
Department of Higher and Technical
Education, Shillong
2. The Director of Higher and Technical
Education, Shillong, Meghalaya
3. The Inspector of Schools,
East Khasi Hills District,
Shillong, Meghalaya
4. The Managing Committee
Arya Kanya Vidhyalaya
Secondary School,
Represented by its President,
Laitumukhrah, Shillong
W.P.(C) (SH) No. 329/2008 Page 1 of 24
5. Shri Om Prakash Agarwal,
Secretary, Managing Committee
Arya Kanya Vidhyalaya
Secondary School,
Laitumukhrah, Shillong,
East Khasi Hills District, Meghalaya
..............RESPONDENTS
BEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
For the petitioner : Ms. A. Paul, Advocate
For the Respondents : Mr. N. D. Chullai, GA
Mr. M.F. Qureshi, Advocate
Date of Hearing & Judgment: 31.05.2011
JUDGEMENT & ORDER (ORAL)
1. By means of this writ petition, the petitioner who was the Headmaster of the school, namely Arya Kanya Vidyalaya Secondary School, Shillong, has challenged the order dated 19.09.2007 (Annexure-13) by which pursuant to a departmental proceeding he has been removed from service. As per the impugned order, the removal of the petitioner from service will not be a disqualification for future employment and that the period of suspension which W.P.(C) (SH) No. 329/2008 Page 2 of 24 had preceded the impugned order of removal would be treated as leave without pay.
2. The petitioner was appointed as Headmaster as well as Science Teacher of the school, i.e. Arya Kanya Vidyalaya Secondary School, Shillong, on 06.11.1986 and since then he had been functioning as such till the impugned order of removal from service was passed on 19.09.2007. During the course of employment the petitioner was also appointed as the Secretary of the Managing Committee by virtue of his office. Thereafter the respondent No. 5 was appointed as the Secretary of the Managing Committee in the year 1997. According to the petitioner, after assumption of the charge of Secretaryship by the respondent No. 5 various irregularities had been committed by him. Allegation of misappropriation of school fund by the respondent No. 5 has also been made by the petitioner.
3. According to the petitioner, the respondent No. 5 alongwith the President of the school lodged an FIR against him on 04.11.2002 in order to harass him. As per the said FIR, the petitioner had misappropriated some amount of the school. On the basis of the said FIR, a police case being Laitumkhrah P.S. Case W.P.(C) (SH) No. 329/2008 Page 3 of 24 No. 103(11)/2002 U/s. 420/403/406/464 IPC was registered. During the course of hearing it has been submitted by the learned counsel for the parties that the said criminal case is now pending trial after framing of the charges against the petitioner.
4. The petitioner was placed under suspension w.e.f. 04.12.2002 by order dated 13.12.2002 as per the resolution of the Managing Committee. He was placed under suspension pursuant to arrest by the police. In the writ petition the petitioner has stated about certain disputes that allegedly arose between the teachers and the respondent No. 5 making allegations and counter allegations.
5. The petitioner had occasion to challenge the order of suspension by filing a writ petition being W.P.(C) No. 128 (SH)/2005. In the writ petition, an affidavit in opposition was filed by the school managing committee in which it was stated that the petitioner had already been removed from service. According to the petitioner till filing of the said affidavit he was not aware of the order of removal passed against him. Accordingly the writ petition was withdrawn and thereafter the petitioner filed the instant writ petition challenging the order of removal.
W.P.(C) (SH) No. 329/2008 Page 4 of 24
6. The grounds on which the petitioner has filed this writ petition are that the petitioner was not provided with any reasonable opportunity of being heard to defend his case in the enquiry proceeding; that the order of removal was not approved by the competent authority and that the managing committee of the school being not authorized one, could not have initiated the departmental proceeding against the petitioner with consequential order of removal from service.
7. The respondents have filed their counter affidavit enclosing all the documents pertaining to the departmental proceeding against the petitioner. After filing the counter affidavit on 09.02.2009, the respondent Nos. 4 and 5 filed another affidavit on 26.08.2010 bringing on record the reply to the second show cause notice submitted by the petitioner on 07.03.2007. However, the petitioner in his rejoinder affidavit filed against the said affidavit, has denied the submission of second show cause reply pursuant to the show cause notice issued to him on completion of the enquiry proceeding.
W.P.(C) (SH) No. 329/2008 Page 5 of 24
8. In the counter affidavit, the respondents have stated about the purported irregularities and illegalities committed by the petitioner. As regards to non-compliance of the principle of natural justice in conducting the enquiry against the petitioner, the respondents have stated in paragraph-22 that due notice(s) were sent to the petitioner by registered post. In this connection, it will be pertinent to mention the relevant portion of the said paragraph which is reproduced below:
"it is pertinent to mention herein that the petitioner was furnished with the Inquiry Report submitted by Inquiry Officer along with the copy of the entire proceeding of Departmental Inquiry including copy of charge sheet, show cause filed by him, orders appointing Inquiry Officer and Presenting Officer, Notices, statements of all the witnesses and the documents exhibited during the course of inquiry. The Second Show Cause Notice was sent Alongwith the copy of the Inquiry Report and entire proceeding of Departmental Inquiry by Registered Post with A/D from Shillong GPO bearing Postal Receipt No. RLAD B 8942 dated 19.02.2007. The petitioner sent is Representation dated 07.03.2007 in response to the Second Show Cause Notice by Speed Post on 12.03.2007 which was received by the Answering Respondent on 12.03.2007 at 1:50 p.m. and the same was carefully examined. Further the Managing Committee of Arya Kanya Vidyalaya Secondary School, Laitumkhrah, Shillong convened a meeting on 15.09.2007 on receipt of Representation dated 07.03.2007 from the petitioner and adopted a Resolution No. 1 dated 15.09.2007 whereby it was resolved to remove the petitioner from service.W.P.(C) (SH) No. 329/2008 Page 6 of 24
It is absolutely incorrect on the pat of the petitioner to allege and deny that the Removal Order No. AKVSS/MC/2007-08/16-19 dated 19th September 2007 was not communicated to him. In fact the Disciplinary Authority communicated the said removal order to the petitioner Alongwith the copy of the Resolution No. 1 dated 15.09.2007 by sending the same through the Registered Post with A/D from Shillong GPO bearing Postal Receipt No. RLAD B 6393 dated 19.09.2007. On account of typographical error in the Removal Order the Disciplinary Authority sent the Corrigendum vide letter No. AKVSS/MC/2007- 08/20-23 dated 20.09.2007 by the Registered Post with A/D bearing Postal Receipt No. RLAD A 8696 dated 20.09.2007. The Department of Posts, Customer Care Centre, O/o. the Sr. Supdt. of Post Offices; Meghalaya Division, Shillong - 793001 vide letter No. CPT/Misc./RL-etc/-7-08 dated 12.11.2007 confirmed that the said RLAD No. B 6393 dated 19.09.2007 and RLAD No. A 8696 dated 20.09.2007 were delivered to the petitioner on 01.10.2007.
Further soon after the removal of the petitioner from service and on being apprehended that the said removal order would be challenged before this Hon'ble Court, the School Managing Committee filed caveat petitions before this Hon'ble Court with a copy to the petitioner from time to time as under:-
Sl. Date of filing Caveat No. Notice sent by No. Registered Post 1 21.09.2007 Caveat No. 108(SH)2007 Postal receipt No. RLAD B 6643 dt.
21.09.2007 2 10.01.2008 Caveat No. 2 (SH)2008 Postal Receipt No. RLAD B 5145 dt.
10.01.2008 3 04.09.2007 Caveat No. 146(SH)2007 Postal Receipt No. RLAD D 4699 dt.
04.09.2008 4 04.12.2008 Caveat No. 171(SH)2007 Postal Receipt No. RLAD A 9093 dt.
04.12.2008 The petitioner is taking unfair advantage and trying to mislead this Honb'le Court by making a false W.P.(C) (SH) No. 329/2008 Page 7 of 24 statement that he came to know about the removal order only on receipt of the Affidavit dt. 02.09.2008 which is factually incorrect, in fact he was very much aware about the removal order which was communicated to him and delivery of which was confirmed by the Postal Department. Even the Subsistence Allowance payable to the petitioner was stopped w.e.f. October, 2007 consequent upon his removal from service, interestingly, the petitioner has never made any grievances against the non-payment of the said allowance to him as the petitioner is having full knowledge about the Removal Order right from 1st October, 2007 when he received the Removal Order."
9. In reply to the said assertion made in paragraph-22 of the counter affidavit, the petitioner in his rejoinder affidavit has stated thus:
"that the averments made in paragraph-22 of the Affidavit-in-Opposition being matters on records, the Petitioner does not wish to make any comment."
10. The charges against the petitioner as quoted in the enquiry report dated 18.01.2007 are as follows :
"ARTICLE OF CHARGE NO. 1
The said Shri Bindeswar Roy while assuming the charge of the Headmaster, started collection of the following fees with effect from 17.05.1997.
1. Admission Fee, 2. Transfer Certificate fee The said Shri Bindeswar Roy failed to maintained the accounts and also failed to produce the same before the Managing Committee inspite of the copy of Resolution No. 8, 11, 12, 14 and 15 dated 11.12.1999 W.P.(C) (SH) No. 329/2008 Page 8 of 24 was furnished to him vide letter No. dated 22.03.2000 and subsequent reminds issued to him vide letter No. AKVHS/Accts/2000-1/3 dated 05.05.2000.
The said Bindeshwar Roy in his reply to show cause dated 15.05.2000 has admitted that he had spent/ utilized the collected school fees on account of financial difficulties and thereby misappropriated the school fees amounting to Rs. 2,25,000/- (Rupees Two Lakh Twenty Five Thousand) approx. only w.e.f. 17.05.1997 till Nov. 2002.
By his above acts, Shri Bindeswar Roy failed to maintained absolute integrity and exhibited conduct unbecoming of a public servant and this violated the Provisions of Service Conduct Rule 1990, Rule-3(1), (2) and (3).
ARTICLE OF CHARGE NO. II That while functioning in the school during the aforesaid period, a regular Managing Committee was constituted and approved by the Inspector of Schools, East Khasi Hills, Shillong vide his Letter Order No. IS/M-4/2001/2547-67 dated 12.03.2001. Thereafter the said Managing Committee was stayed by the Hon'ble High Court in W.P.(C) No. 74(SH) 2001 vide interim order dated 19.04.2001.
The said Bindeshwar Roy taking undue benefits of stay order and in absence of Managing Committee started collecting the following fees.
1) Monthly fee
2) Annual Library fee
3) Annual contingency fee
4) Building fee
5) Development fee
6) Annual Games fee
7) Exam. Fee and
8) Magazine fee The collection was made for the period from March, 2001 to November, 2002 and illegally amassed a sum of Rs. 2,00,000.00 (Rupees Two Lakhs) approx. only for his personal gain violating the earlier order of W.P.(C) (SH) No. 329/2008 Page 9 of 24 the Managing Committee when Shri Sashi Kant Thakuri was empowered to collect the aforesaid fee.
By his above acts, Shir Bindeshwar Roy fails to maintain absolute integrity and devotion to duty and in a manner unbecoming a public servant and thus violated the provision of Meghalaya Service Conduct Rule, 1990.
The said Bindeshwar Roy, even on circulation of Notice amongst the students and guardians vide notice dated 18.02.2002 kept continuing the collection of fees. Finally, the Managing Committee has passed further Order/Resolution No. 4 dated 02.06.2002 authorizing Shri Sashi Kant Thakuri and Miss Madhu Rawat to collect the school fees from the students which the direction to deposit the same in School Bank A/c. No. 11563 with Vijaya Bank, Laitumkhrah Branch, Shillong. Accordingly, the student and teacher has also been intimated vide order No. AKVHS/MC/2002/03/37 dated 25.10.2002.
In spite of the above arrangement by the Managing Committee, the said Shri Bindeshwar Roy got printed false receipts illegally for collection of fees. Constant failure on the part of Shri Bindeshwar Roy to comply with the order passed by the Managing Committee and on being compelled, lodged a complaint with the Officer-in-Charge of Laitujkhrah P.S. Shillong which was registered as Laitumkhrah P.S. Case No. 103(11)02 u/s. 420/403/406/464 IPC.
This fraudulent act of the said Shri Bindeshwar Roy shows that he has acted in a manner unbecoming a public servant and failed to maintained absolutely integrity and devotion to duty thus violated the service rule."
11. On perusal of the charges against the petitioner it is seen that the basic charge against the petitioner was misappropriation of fund of the school to the extent indicated in the charges. In the enquiry proceeding, although the petitioner was provided with the opportunity of being heard with due service of notice, but as W.P.(C) (SH) No. 329/2008 Page 10 of 24 recorded in the enquiry report he did not respond to the enquiry proceeding. However, it is stand of the petitioner that he did not receive any notice from the enquiry officer and thus could not appear in the enquiry proceeding.
12. It is on record that pursuant to the charge sheet dated 08.03.2006, the petitioner had submitted his reply on 10.03.2006. In the reply he did not deal with the charges specifically, but made a general denial stating that the Memorandum of charge sheet was false and fabricated. After the aforesaid charge sheet and the reply thereof the disciplinary authority by its order dated 05.04.2006 appointed the enquiry officer to enquire into the charges. Thereafter notice(s) were sent to the petitioner under registered post. The enquiry officer also sent notice to the petitioner asking him to appear in the enquiry proceeding. In this connection, the respondents have enclosed the copies of the letters addressed to the petitioner on 28.04.2006, 15.06.2006, 05.07.2006 and 11.07.2006 by the enquiry officer. All the letters were sent under registered post. However, there was no response from the petitioner.
13. In view of the above, the enquiry officer had no option then to proceed ex parte against the petitioner.
W.P.(C) (SH) No. 329/2008 Page 11 of 24
14. At this stage, it will be appropriate to mention about the order dated 05.07.2006 in the enquiry proceeding a copy of which has been annexed to the counter affidavit. In the proceeding held on 05.07.2006, it was recorded that the petitioner was absent without intimation in spite of receipt of notice on 15.06.2006 issued to him. The order further speaks of non-appearance of the petitioner on 15.05.2006 in spite of notice dated 28.04.2006 which was received by him on 02.05.2006. The order further reveals that the petitioner vide his letter dated 12.05.2006 had raised the some points which were clarified to him by letter dated 15.06.2006 and he was asked to appear before the enquiry officer on 05.07.2006 at 11:00 am. However, the petitioner did not do so. But in the writ petition the statement made is that he was not aware of the enquiry proceeding.
15. On conclusion of the enquiry proceeding, the enquiry officer has held the petitioner guilty of the charges. For a ready reference, the conclusion recorded by the enquiry officer is reproduced below:
"CONCLUSION On careful analysation of evidence and documentary adduced during the inquiry and by W.P.(C) (SH) No. 329/2008 Page 12 of 24 application of mind to assume at the final conclusion, I the Inquiry Officer give my independent opinion basing in the following facts and circumstances.
1. In my opinion, the non-appearance of Delinquent Officer, before the Inquiry Officer, despite several notices/requests has got reasoned to believe that the Delinquent Officer has misappropriated the funds.
2. In my opinion, the admission of guilt by the Delinquent officer by his representation dated 15.05.2000 is clear and unambiguous and in best form of proof against him. So the charges found against him is correctly established by him own statement, hence can't be denied.
3. In my opinion, the Delinquent Officer is not entitled to collect the school fees from the students on false printed receipts without any authority of the Managing Committee and it has also been found that fees collected by the Delinquent Officer from the students has been utilized for his personal gain without rendering any account to the Managing Committee.
While concluding the inquiry against Shri Bindeshwar Roy, Headmaster (Under Suspension), I hereby offered by independent opinion of the inquiry that Shri Bindeshwar Roy, Headmaster (Under Suspension) is not free from charges framed against him and it has been fully established from the above facts and circumstances that he has misappropriated the schools fund amounting to Rs. 2,50,000/- approx. w.e.f. 17.05.1997 and thereafter further he misappropriated a sum of Rs. 2,00,000.00 approx. w.e.f. March, 2001 to Nov. 2002 which Delinquent Officer has collected illegally from the students of Arya Kanya Vidyalaya High School, Laitumkhrah, Shillong and the same was neither deposited in the Schools Bank account nor he has handed over the same to the Managing Committee till today.
Now, it is the Disciplinary Authority to take necessary steps as deem fit and proper".W.P.(C) (SH) No. 329/2008 Page 13 of 24
16. In the rejoinder affidavit filed by the petitioner it has been stated that the petitioner was not aware of the enquiry proceeding as he did not receive any notice. It is in this context, the respondents have brought on record the reply furnished by the petitioner to the second show cause notice which is dated 07.03.2007. In the said second show cause notice none of the pleas raised in this writ petition was raised. Rather, in paragraph- 18, it was admitted by the petitioner that he had spent some amount of the school fund for his personal use. For a ready reference, paragraph-18 of the said reply is reproduced below:
"18. That Sir, I did not keep any kind of amount with me and whatever money realized that was used up in specially school purposes such as conveyance, postage clerical work stationery, telephone bill, question paper, Municipal rent, teas official & visitor and remaining a few amount may be spent by me because during yours tenure in 10 years neither you gave my proper salary in time nor even a single penny has not been provided by the School Managing to run the office of the Headmaster right the dated of 1st March, 1997 to 4th December, 2002. Although suggestion was given by Smt. B. Lamare Asst. Inspector of the Schools to demand requirement of the office expenditure and I also did it but all the correspondences were useless or in vain. So far you have been blaming and propagating to me for longtime that is your nature to tell lie and down the prestige to the Headmaster".W.P.(C) (SH) No. 329/2008 Page 14 of 24
17. Apart from the above, the petitioner had also admitted that he had misappropriated some amount from the school fund. Such admission was by his letter dated 15.05.2000 which was exhibited as Exbt. 4 in the enquiry proceeding. The relevant portion of the said letter dated 15.05.2000 is reproduced below:
"Sir, that whatever the amount received by me as an admission fees etc. had spent by me as I was facing great financial difficulties. However, I am stated that whatever the due payable from the Managing Committee to me. After getting said amount I will be able to give you the clear account of the schools more.
For this act of kindness I shall be very grateful to you."
18. The petitioner had denied the submission of the reply to the second show cause notice. In this connection he has stated in the rejoinder affidavit dated 01.03.2011 that the purported reply to the second show cause notice is a manufactured document inasmuch as the petitioner never made any such reply to the second show cause notice.
19. To quell any doubt, I have verified the signatures of the petitioner appearing in the proceedings in various documents as well as the signatures appearing in the said reply to the second show cause notice. This particular exercise has been carried out as provided for under Section 73 of the Indian Evidence Act, 1872. W.P.(C) (SH) No. 329/2008 Page 15 of 24 Irrespective of the said provision, on the face of it, the signature of the petitioner appearing in the reply to the second show cause notice when compared with other signatures appearing in the other documents available in this proceeding leave no manner of doubt that the second show cause reply was submitted by none other than the petitioner.
20. Ms. Paul, learned counsel for the petitioner submits that the enquiry proceeding initiated against the petitioner being perverse and based on mala fide exercise of power at the behest of the respondent No. 5, same should be interfered with. She further submits that in the proceeding undertaken by the enquiry officer the petitioner was not given any opportunity of being heard. She also submits that the notice(s) stated to have been served on the petitioner in fact, were not served on him.
21. Countering the above argument, Mr. M.F. Qureshi, learned counsel appearing for the school managing committee submits that although the petitioner was provided with all opportunities of being heard, he did not avail the same and now coming to the writ court has blamed the respondents for alleged non-compliance of the principles of natural justice. Mr. N.D. Chullai, learned State counsel W.P.(C) (SH) No. 329/2008 Page 16 of 24 has submitted that the fact that the petitioner duly received notice is amply evident from the order passed on 05.07.2006 in the enquiry proceeding in which it was clearly recorded that the petitioner had made certain queries, but did not respond to the proceeding by appearing before the enquiry officer.
22. Another point urged by Ms. Paul, learned counsel for the petitioner is that the impugned order of removal passed against the petitioner is nonest inasmuch as the said order was not approved by the competent authority. She submits that such approval of the order of removal being not there, same cannot be given effect to and consequently it is liable to be interfered with.
23. As regards the aforesaid submission, both Mr. N.D. Chullai, as well as Mr. M.F. Qureshi, learned counsel appearing for the respondents, upon reference to the decision of this Court reported in 2000 (3) GLT 656 (Aryasamaj & anr. Vs. State of Meghalaya & ors.) submit that the school being a minority institution, there is no requirement of obtaining any prior approval from the competent authority. In the said decision when the question arose as to whether the Govt. was competent to take over the management of the minority school, it was held that the W.P.(C) (SH) No. 329/2008 Page 17 of 24 school in question was entitled to minority status in the State of Meghalaya and consequently its management could not have been taken over by the Govt.
24. As regards to the admission of defalcation of some amount of the school fund by Exbt. 4 letter dated 15.05.2000, Ms. Paul, learned counsel for the petitioner has submitted that the same being prior to issuance of the charge sheet and initiation of the proceeding, could not have been placed reliance by the enquiry officer and the disciplinary authority. I am not impressed with this argument inasmuch as in a departmental proceeding the disciplinary authority is competent to exhibit the documents in support of its case. In fact, alongwith the chargesheet a list of documents was also furnished in which the Article of Charge No. 1 clearly mentioned about the admission of misappropriation of school fund by the petitioner vide his reply letter dated 15.05.2000 (Exbt. 4).
25. The impugned order of removal passed against the petitioner was preceded by the resolution adopted by the managing committee of the school in its meeting held on 15.09.2007 a copy of which has been annexed to the counter affidavit. On perusal of W.P.(C) (SH) No. 329/2008 Page 18 of 24 the said resolution, what is found is that in the meeting the matter was discussed in detail and all the relevant materials were referred to towards arriving at a decision to remove the petitioner from service. As regards to second show cause notice representation dated 07.03.2007, the managing committee made its discussion in the impugned resolution which is reproduced below:
"The Delinquent Officer Shri B. Roy sent his Representation dt. 07.03.2007 in response to the Second Show Cause by Speed Post on 12.03.2007 which was received by the Secretary on 12.03.2007 at 1:50 p.m. The Representation dt. 07.03.2007 submitted by the Delinquent Officer was carefully examined found to have been vague as vagueness while he was found negligent and deliberately did not take part in the Departmental Enquiry to defend himself and to prove his innocence. Shri Bindeshwar Roy was given a fair opportunity by the Disciplinary Authority to submit written statement in his defence and deny or admit each Articles of Charge but Shri Bindeshwar Roy although filed his written statement in defence but did not deny the allegations specifically save and except the general denial. The Representation filed by Shri Bindeshwar Roy in response to the second Show Cause notice has been taken into account wherein he admitted with regard to the collection of school fees and spending the same for his personal use without rendering any accounts to the Managing Committee".
26. On the basis of the entire evidence on record, the school managing committee was of the opinion that the penalty of removal from service should be imposed on the petitioner. Accordingly the said resolution was adopted pursuant to which the W.P.(C) (SH) No. 329/2008 Page 19 of 24 disciplinary authority passed the impugned order dated 19.09.2007.
27. As regards to the plea of non service of notice, the kind of submission made by the petitioner in the specific reply to the respondents have been noted above. In paragraph-22 of the counter affidavit, the respondents categorically stated about the service of notice on the petitioner to which the reply of the petitioner was that the averments being based on records, he would not wish to make any comment. Further, service of notice on the petitioner and acknowledgment thereof by him is amply demonstrated in the order dated 05.07.2006 passed in the enquiry proceeding about which discussions have been made above. For a ready reference, the said order (relevant portion) is quoted below:
"Shri A.B. Dutta, Presenting Officer on behalf of the School Authority is present. Shri Bindeshwar Roy (Headmaster, Under Suspension) is absent without intimation inspite of the fact that he did receive the notice dated 15.06.2006 issued to him. Shri Bindeshar Roy was also not present on 15.05.2006 in spite of the Notice dated 28.04.2006 which he received on 02.05.2006 though he raised some points vide his letter dated 12.05.2006 which were clarified to him vide letter dated 15.06.2006 and he was asked to appear before me on 05.07.2006 at 11 AM for preliminary inquiry."W.P.(C) (SH) No. 329/2008 Page 20 of 24
28. When a point which is ostensibly the point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondents, from the counter affidavit. In this connection, the observation made by the Apex Court in Bharat Singh and ors. Vs. State of Haryana and ors. Reported in AIR 1988 SC 2181 is reproduced below:
"13. ... In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to pint out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."
29. In the instant case, the respondents in their counter affidavit made the above quoted specific averments regarding service of W.P.(C) (SH) No. 329/2008 Page 21 of 24 notice to the petitioner and reply of the petitioner to the same has been noted above, which amounts to admission of service of notice. As has been held by the Apex Court in Gujarat Elecrtricity Board and anr. Vs. Atmaram Sungomal Poshani reported in (1989) 2 SCC 602, there is always a presumption of service of a letter sent under registered cover. The presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service.
30. In the instant case, the petitioner failed to discharge his burden as he failed to place the materials that the notice was not served on him or that same was returned because of wrong address. Apart from the above, it is evident from the materials on record that the petitioner had in fact, received the notices issued to him by the enquiry officer. This is precisely the reason as to why he had communicated with the enquiry officer seeking certain clarifications. This aspect of the matter has been discussed in the W.P.(C) (SH) No. 329/2008 Page 22 of 24 order dated 05.07.2006 passed by the enquiry officer. The clarifications sought from the petitioner were replied to, but there after the petitioner did not respond to the proceeding.
31. As has been held by the Apex Court in Channabasappa Basappa Happali vs. State of Myore reported in AIR 1972 SC 32 , admission of fact alleged in the charges implies admission of guilt. In the instant case, the charge against the petitioner was defalcation of fund of the school. In his aforesaid reply dated 15.05.2000 (Exbt. 4) as well as the reply to the second show cause notice, the petitioner had admitted the fact of defalcation of some amount of the managing committee and thereby he had admitted his guilt.
32. Ms. Paul, learned counsel for the petitioner has raised certain disputes regarding minority status of the school. She has also raised question of jurisdiction of the school managing committee which according to her is not authorized to take any decision in the matter. In this connection, she has referred to the rejoinder affidavit filed on 24.02.2011 in which certain disputed question of fact has been raised as to the minority status of the school. However, the fact of the matter is that the petitioner never raised W.P.(C) (SH) No. 329/2008 Page 23 of 24 any such question before the disciplinary authority or questioned its competence to initiate departmental proceeding against the petitioner.
33. As regards the minority status of the school in question, the petitioner never agitated the same by making any specific averments in the writ petition. The petitioner being in the service of the school and he having admitted the authority of the managing committee of the school, cannot now resile back from that position so as to contend that the managing committee of the school was not competent to initiate the departmental proceeding against him. As regards the minority status of the institution, the respondents have placed reliance on the decision in Aryasamaj & anr. (supra). The said judgment has attained its finality.
34. For all the aforesaid reasons, I do not find any merit in the writ petition. Accordingly, it is dismissed.
JUDGE Kborah W.P.(C) (SH) No. 329/2008 Page 24 of 24