Rajasthan High Court - Jaipur
Rakesh Kumar vs Gramothan Vidyapeeth Siksha ... on 9 January, 1987
Equivalent citations: 1987(2)WLN339
JUDGMENT Kishore Singh Lodha, J.
1. By the writ petition, the petitioner Rakesh Kumar, who was a member of the respondent Gramothan Vidyapeeth Shiksha Mahavidyalya, has challenged the orders Annx. 7, 8 & 9, by which penalties have been inflicted upon him. It may be mentioned that on 5-8-1984 a charge-sheet, Annx. 3 was served upon the petitioner, in which inter alia it was alleged that the petitioner had charged an illegal gratification of Rs. 1,000/-, and Rs. 2000/-respectively from Shri Ujjagar Singh and Nachhater Singh at the time of their admission to the B Ed. classes in July 1983, while the petitioner was officiating as the Principal of the College. The petitioner filed his reply to this charge-sheet on 13-8-1984, a copy of which has been filed as Annx. 4. He denied the charges and attributed malafide to the authority, namely, the Administrator of the respondent Gramothan Vidyapeeth. Thereafter, on 8 4-1985, again a communication was sent to the petitioner, charging him with absence from duty without leave and his habitual absence and carelessness Copy of this letter is Annx. 5. The petitioner submitted his reply to it vide Annx. 6, denying the charge and stating that he had already applied for grant of leave on account of illness and had also submitted a Medical Certificate, in support of the same.
2. The case of the petitioner is that after this he did not hear from the authorities for quite some time and later he received a copy of a letter addressed by the Manager to the Principal of respondent No. 1 dated 14/16-7-1985 and further two other communications addressed to the petitioner both dated 318-7-1985. The copies of three documents have been filed as Annxs. 7, 8 and 9 respectively. By Annx 7, the Manager had informed the President of the respondent No. 1 that after enquiry the charges levelled against the petitioner have been found proved and he had been found guilty of the charges of receiving illegal gratification of Rs. 1,000/- and Rs. 2.500/-respectively from Ujjager Singh and Nachhater Singh at the time admission was given to them in B.Ed. Class and the Principal was further directed that Rs. 3,500/- may be deducted from the salary of the petitioner and be paid over to the aforesaid two students. By Ex. 6, the petitioner was informed that he had been found guilty of the aforesaid charge on the enquiry made in that respect and as a consequence, the penalty of with helding of one increment permanently (for the year 1984 85)had been imposed upon and he was warned not to commit such improper acts in future. By Annx. 9 the petitioner was informed that it was found that he had absented himself from the College without leave on 4-4 1985, 5-41985 and 6-4-1985 and he had failed to give any satisfactory reply to the notice asking him to explain the action and, therefore, the absence was being treated as a break in the service and his next increment was deferred by 3 days He was also warned not to act in such careless manner in future.
3. While challenging these orders the petitioner has urged that these orders have been passed in utter disregard of the principles of natural justice, without affording him any opportunity of being heard, without making any enquiry or atleast any enquiry in the presence of the petitioner, after notice to him, and, therefore, these orders deserve to be quashed. He further urged that in any case the three orders are non-speaking orders and the replies filed by the petitioner, have not at all been taken into consideration and no reference has been made to them in any of the orders. His case further is that the orders are based on no evidence at all He has, therefore, prayed that these orders be quashed and the penalties imposed upon him may consequently be set aside.
4. Respondent No. 1 has contested the writ petition by filing a reply. Preliminary objections have been raised to the effect that the respondent No. 1 is not a State within the meaning of Article 12 of the Constitution and, therefore, the writ petition against it is not maintainable. It is stated in this connection that the respondent No. 1 has not received any grant in aid from the State nor any Government Officer is on the Managing Body of the University and the Government has no control over it. It is further alleged that the respondent No. 1 is not affiliated to the University of Rajasthan. Only a college run by the Society is affiliated to the University and such affiliation will not make the Society a state within the meaning of Article 12 of the Constitution of India.
5 An objection has also been raised that the petitioner has made a false statement, knowing it to be false in the writ petition and has produced a pre-dated wrong medical certificate. He is, thus, guilty of a serious misconduct and, therefore, he is not entitled to any relief in exercise of the extra-ordinary jurisdiction of this court. In this connection it is stated that on 27-3-1985 the petitioner was on duty in the Institution at Sangaria and had signed the attendance Register, copy of which has been filed as Annexure R/1. He had proceeded on medical leave only after finishing final practical examinations on 27-3-1985 and thus, he was at Sangaria till the afternoon of 27-3 1985 and he could not have been present in Delhi on 27-3-1985, still he had obtained the certificate of his illness from medical practitioner at Delhi on 27-3-1985 and, therefore, his misconduct is writ large.
6. It has also been stated that the petitioner has again made a false statement in para 12(1) of the writ petition to the effect that after receiving the reply from the petitioner, no enquiry what so ever was held at his back, and if any enquiry was at all held it was although, as a matter of fact the enquiry was held after notice to the petitioner on September 30, 1984 and the notice was sent under postal certificate, copy of which has been filed as Annx. R/3. However, the petitioner did not attend the enquiry but it cannot be said that no enquiry was made at the back of the petitioner.
7. I have heard the learned Counsel for the parties and perused the material on record. So far as the first preliminary objection goes, the learned Counsel for the non-petitioner has urged that respondent No. 1 cannot be said to be a State or any other authority envisaged under Article 12 of the Constitution and therefore, it is not amenable to the jurisdiction of this court under Article 226. In support of the contention he has placed reliance upon Vaish Degree College v. Lakshmi Narain AIR 1976 SC 888, Ajay Hasia v. 'Khalid Mujib , N.K. Ramiah v. Yadava Kalvi Nithi Regd. Society and Jagdish Chander Gupta v. Jammu & Kashmir Bank Ltd. .
8. In reply, the learned Counsel for the petitioner has urged that admittedly the College in which the petitioner is employee under the respondent No. 1, is affiliated to the University of Rajasthan and is governed by the University of Rajasthan Act. It has further been urged that according to the provisions of the University of Rajasthan Act and the Ordinance issued there from, the petitioner is governed by the rules and regulations of the University and the appointment of the petitioner is governed by the contract which has been provided fur under the Act and according to Clause (6) of that contract, the employees of the college are governed by the Rajasthan Civil Service Rules. In these circumstances, it is urged by the learned Counsel for the petitioner that the administration of the college which is vested in respondent No. I is certainly amenable to the jurisdiction of this court and a writ can be issued against it. It has also been urged that the Educational Institutions run by respondent No. 1 are to be institutions according to statutes 26(1) of the University of Rajasthan and, therefore, also respondent No. 1 is amenable to The jurisdiction of this Court. He has placed reliance upon Aley Ahmad v. Dist Inspector of Schools AIR 1977 All. 529, Praga Tools Corpn. v. C.V. Imanmal , Harbhjan Singh v. Shakuntala Devi , H MT. Workers & Staff Union v. H.M.T. Ltd., Hyderabad 1982 LIC, 181 and Dr. A.K. Chakravarthy as Jagannath Kishore College and Ors. 1982 LLJ 427.
9. Having given my careful consideration to the rival contentions am of the opinion that I need not dwell upon these preliminary objections in great detail because even according to the second preliminary objection raised by the learned Counsel for the petitioner, it does appear that according to him also if the respondent is affiliated to the University of Rajasthan it will be amenable to the writ jurisdiction of this court. What is urged, however, is that respondent No. 1 as such is not affiliated to the University of Rajasthan and it is only the college run and managed by respondent No. 1 which is affiliated to the said University. In my opinion, we are, as a matter of fact, concerned with the college and when the college is admittedly affiliated, the Managing Body of the college cannot be separated from it for that purpose, because it is bound by the provisions of the University of Rajasthan Act and the Ordinance and regulations passed thereunder. In these circumstance. respondent No. 1 is clearly amenable to the jurisdiction of this court and otherwise also it does appear that respondent No. I is carrying on the function of imparting education, which, as a matter of fact, is the function of the State and, therefore, for the purposes of Article 12 it should be deemed to be the State. In any case, when according to statute 25 (0 the college is a public educational institution and the employees there of are governed by Rajasthan Civil Services Rules, the respondent No. 1 has to be taken to be an authority within the meaning of Article 12 of the Constitution. The authorities relied upon by the learned Counsel for the petitioner do no relate to such institutions as resident No. 1 and, therefore, these authorities are not relevant. It may of course be mentioned that the authorities relied upon by the learned Counsel for the non-petitioner, specially Ajay Hasia's case (supra) has laid down criterion by which the question of the applicability of Article 12 to different institutions has to be decided and one of them is that the State or the Central Government have been given the power to appoint any other person or persons to be the members of the Society and any member of the Society other than a member in the State or the Central Government, can be removed from the membership of the Society. In the present case under the regulations of the University of Rajasthan the Managing Body can be superseded and even an Administrator can be appointed and, therefore, even according to this view the respondent No. 1 is amenable to the jurisdiction of this court. In this view of the matter, I need not discuss the authorities relied upon by the learned Counsel for the petitioner. The first preliminary objection is therefore, overruled.
10. The second preliminary objection also has no force in as much as it cannot be said with certainty that on 27-3-1985 the petitioner could not have been at Delhi. According to the non-petitioners themselves, he was at Sangaria only till the afternoon of 27-3-1985 and had thereafter left Sangaria. The exact distance from Sangaria to Delhi has not been indicated but the learned Counsel for the non-petitioner has estimated it to be about 300 Kms. It is not impossible to cover 300 Kms. after leaving Sangaria in the afternoon and reaching Delhi and, therefore, the Certificate from the medical practitioner could have been obtained on 27-3-1985. Not only this, the petitioner's leave application based on this certificate itself has been sanctioned by the respondent No. 1 and it had thus accepted this certificate as correct. It is now too late in the day for it to now challenge this certificate as false. It may also be pointed out that according to the application filed by the petitioner for grant of leave vide Anx. 1, it will be clear that he had applied for leave from 28th to 30th March, 1985.On 27th he was already on duty and need not have obtained a certificate on that day and in these circumstances, the possibility cannot be ruled out that the medical practitioner who issued the certificate may have inadvertently mentioned date 27th in place of 28th of March, 1985 and in these circumstances, I am unable to draw a conclusion that the petitioner is guilty of any falsehood or fabrication. He, therefore, cannot be non-suited on this ground.
11. Coming to the last preliminary objection it may be pointed out that from the copy of the letter issued from the Administrator of the respondent No. 1 to the petitioner on 22-9-1984 Anx. R/3, it does appear that a notice was sent to the petitioner under postal certificate informing him that the statements of the witnesses Ujjagar Singh and Nachhater Singh, in the enquiry against the petitioner, would be recorded No. 30 9-1984 and he was requested to be present for cross examination of those witnesses. But there is no material on record to show that as a matter of fact the communication had reached the petitioner. The presumption of the posting of the letter under postal certificate, cannot go to the extent of raising a presumption of its service or delivery to the petitioner. Further it is pertinent to note that in para 4 of the reply to the writ petition where in the present preliminary objection has been raised, it has not all been stated that the letter, Annx. R/3 had been delivered to the petitioner or had reached him and therefore, this preliminary objection also cannot be accepted and it cannot be held that the petitioner is guilty of falsehood in this respect.
12. This brings me to the merits of the matter. The petitioner has been held guilty of two charges. The first is that he had received illegal gratification from the two students Ujjagar Singh and Nachhater Singh, while giving them admission to the B.Ed. class. It is of course true that in this respect the charge sheet was served upon the petitioner and he was asked to file his reply, which he did. The management did not proceed to hold the petitioner guilty by discarding the reply filed by him as unsatisfactory, but had proceeded to make an enquiry and according to the document Anx. R/1, it does appear that at least these two witnesses were examined. As already stated above, there is no material on the record to show that the petitioner did have knowledge of these witnesses being examined on 30-9-1984 and, therefore, he cannot be said to have any opportunity to cross-examine them. The evidence recorded without affording an opportunity of cross-examination, can hardly be deemed to be evidence on which reliance can be placed. The matter does not rest here. Even if for the sake of argument it be assumed that the Annx. Ex. R/3 reached the petitioner & he did not appear on 30-9-84 there is further nothing on the record to show that he was ever given any opportunity of producing his own evidence in rebuttal and, therefore, such an enquiry, cannot be suit to have been made after proper compliance of the principles of natural justice.
13. The matter does not rest here. A perusal of the documents Annxs. 7 and 8 would go to show that the petitioner has been held guilty of receiving illegal gratification from Ujjagar Singh and Nachhater Singh. But these orders do not show on what material this finding was based and how the authority concerned arrived at this conclusion. A close scrutiny of these two orders would go to show that probably there was an earlier occasion when the authority concerned had reached to the conclusion of guilty but it did not record any such finding and in any case no such order holding the petitioner guilty of this charge, along with reasons therefor has been put forward by the non-petitioner even with the reply to the writ petition and, therefore, all that we have on the record before us are the orders Annxs. 7 and 8 which do not record any reasons for the basis of the findings and are, therefore, clearly non-speaking orders and such orders, therefore, cannot be maintained.
14. Coming to the order Annx. 9, it may at once be stated that it also suffers from the same lacuna of being a non-speaking order. All that is says is that on seeing the attendance register and other records, it has come to light that the petitioner had been in the habit of remaining absent without prior intimation and that the attendance register showed his absence on 4 4 1985, 5-4-1985 and 6-4-1985. The reply filed by the petitioner to the notice Anx. 5 and the other application moved by him by Anx. 1 have not at all been taken into account and unless these factors have been taken info account and the petitioner had been afforded an opportunity of explaining the absence, he could not have been held guilty in this summary manner.
15. It may also be stated here that by the Annx. 9 petitioner has been subjected to the punishment of breaking his service and his future increment has been deferred by three days. Such a penalty cannot be said to be a minor penalty and, therefore, could not have been imposed without a proper enquiry, after affording the petitioner a proper opportunity of being heard and, therefore this order also cannot be sustained. It would not be out of place here to mention that the petitioner had been on medical leave from before 4-4-1985 and the absence from 4-4-1985 was in continuance of the previous leave already sanctioned to him. Thereafter the petitioner has submitted the medical certificate from 28-3-1985 to 6-4-1985. In these circumstances when the earlier leave till 4-4-1985 had already been granted to him the absence of the latter three days, could not be deemed to be of such a grave nature, as should have resulted into the break of service and postponement of the increment and, therefore, the penalty imposed is also clearly dis-proportionate to the alleged mis-conduct, and on this count also the order cannot be sustained.
16. For the reasons stated above, the writ petition is accepted. The order of respondent No. 1, Annxs. 7, 8 & 9 are quashed. The respondent No. 1 will be free to initiate fresh disciplinary proceedings against the petitioner, if it is so advised and conduct the proceedings in accordance with law.
17. In the circumstances of the case I shall make no order as to costs.