अल्पसंख्यक शिक्षण संस्थान नहीं कर सकते मनमानी : हाईकोर्ट, बिना जांच किए प्रधानाचार्य की बर्खास्तगी रद्द

अल्पसंख्यक शिक्षण संस्थान नहीं कर सकते मनमानी : हाईकोर्ट, बिना जांच किए प्रधानाचार्य की बर्खास्तगी रद्द

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Judgment reserved on 18.8.2015

Judgment delivered on 04.9.2015

Case :- WRIT - A No. - 50433 of 2013

Petitioner :- Inder Singh Gandhi

Respondent :- State Of U.P.& 4 Ors.

Counsel for Petitioner :- Siddharth Khare,Ashok Khare

Counsel for Respondent :- C.S.C.,Alok Dwivedi,Arvind Upadhyay

Hon'ble Mahesh Chandra Tripathi,J.

1. Heard Shri Dhruv Narain, Senior Advocate assisted by Shri Irshad Ali and Shri Bhavesh Pratap Singh for the petitioner and Shri P.N. Saxena, Senior Advocate assisted by Shri Alok Dwivedi for the private respondents. Learned Standing Counsel has appeared for the State respondents.

2. By means of present writ petition, the petitioner has prayed for quashing the impugned termination orders dated 25.8.2013 and 5.9.2013 issued by the Manager, Harjinder Nagar Inter College, Harjinder Nagar, Kanpur Nagar and has further prayed for direction commanding the respondents not to interfere in his functioning as Principal of the Intermediate College and to pay his regular monthly salary on the said post including all arrears of salary from the date of his suspension.

3. Brief facts giving rise to the present case are that Harjinder Nagar Inter College, Harjinder Nagar, Kanpur Nagar (hereinafter referred to as the institution) is a recognized and aided Intermediate College and is governed by the provisions of U.P. Intermediate Education Act, 1921 (in short, the Act) and U.P. High School Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971. The institution is established and administered by Sikh minority community and has been accorded recognition as a minority institution. The petitioner was appointed as Lecturer in the institution on 30.10.1979. Subsequently, he was selected for the post of Principal by way of direct recruitment and appointed as Principal of the institution on 5.9.2002. The petitioner is in continuous service in the institution from 30.10.1979 and as Principal of the institution from 5.9.2002 and his conduct throughout has been satisfactory and no complaint has been made with regard to his working and conduct. Till the management dispute having come into existence in the institution, there existed no objection of any kind against the working or conduct of the petitioner.

4. Due to the dispute of Committee of Management of the institution, this Court vide order dated 4.9.2006 passed in Writ Petition No.22431 of 2005 authorized the petitioner to carry on day-to-day administration of the institution with the rider that he shall not take any policy decision or incur any financial liability on the institution except for routine expenses.

5. The last election of the Committee of Management of the institution was held on 30.5.2011 in which Shri Balram Singh Oberoi was elected as President and Shri Kulwantjit Singh Gill was elected as Manager. The District Inspector of Schools accorded approval to the said elections on 6.6.2011. On 30.5.2012 a resolution was passed by the Committee of Management removing Kulwantjit Singh Gill by a motion of no confidence and electing Manmohan Singh to function as Manager in his place. The said motion of no confidence was approved by the District Inspector of Schools, Kanpur Nagar by order dated 6.7.2012 and the recognition was also accorded to Manmohan Singh to function as Manager. Shri Kulwantjit Singh Gill filed a Writ C No.33822 of 2012 challenging the order dated 6.7.2012, in which an order was passed on 24.7.2012 declining to grant stay order. The order dated 24.7.2012 was challenged in Special Appeal No.1333 of 2012. Hon'ble Division Bench disposed of the said Special Appeal 13.8.2012 with direction that the matter be placed before learned Single Judge on 16th August, 2012 with a request to the learned Single Judge to atleast dispose of the stay matter. Thereafter an interim order was granted by learned Single Judge in the aforesaid writ petition on 27.8.2012. Finally the writ petition was dismissed on 19.10.2012. A Special Appeal was filed against the said judgment and the said Special Appeal was dismissed on 4.12.2012. A Special Leave Petition against the said order was filed before Hon'ble Supreme Court, which was also dismissed on 8.2.2013. After dismissal of the Special Leave Petition, the controversy pertaining to the removal of Kulwantjit Singh Gill from the office of Manager and election of Manmohan Singh as the Manager stood finally settled and Manmohan Singh started discharging all the duties as Manager of the institution.

6. In the proceedings before the District Inspector of Schools, the petitioner had filed his affidavit pointing out that no meeting of the Committee of Management had been held subsequent to 11.11.2011. On assumption of office as Manager of the Committee of Management of the institution, Manmohan Singh felt that the petitioner had favoured Kulwantjit Singh Gill during the management dispute and on such account, several notices were issued to the petitioner calling explanation from him. The petitioner discharged his duties as Principal of the institution and followed the orders issued to him by the person functioning as the Manager either under orders of education department or under court orders. By the order dated 29.6.2013 the petitioner was placed under suspension and a Three-Member Enquiry Committee was constituted to conduct an enquiry into the allegations made against the petitioner. On 5.7.2013 a charge sheet was issued to him and on receipt of the aforesaid charge sheet, the petitioner filed a representation dated 23.7.2013 requesting for supply of the required documents to enable him to submit his reply. The petitioner submitted his reply on 6.8.2013. On 14.8.2013 the Enquiry Committee issued a notice to the petitioner fixing 19.8.2013 as the date for petitioner's appearance and place his oral and written version. The petitioner appeared before the Enquiry Committee on 19.8.2013 and submitted a detailed representation and apart from submission of the aforesaid written representation, no other proceedings of any kind was conducted by the Enquiry Committee on the said date. Neither oral statement of the petitioner was recorded nor the petitioner was cross-examined. No other witness was produced nor the petitioner was afforded opportunity to cross-examine any witness. In fact, no witness was produced even for proving the documents sought to be relied upon against the petitioner.

7. The petitioner was issued a notice dated 21.8.2013 intimating that a meeting of the Committee of Management was scheduled on 25.8.2013 for taking decision on the enquiry report submitted by the Enquiry Committee. The aforesaid notice was not accompanied by any other document and copy of the enquiry report was not supplied to the petitioner. On 23.8.2013 the petitioner filed a representation before the Manager for supply of the enquiry report to enable him to place his defence before the Committee of Management.

8. It appears from the record that after suspension the petitioner approached the Manager of the institution for revoking suspension order vide his letter dated 1.7.2013 and the same was endorsed to the District Inspector of Schools, Kanpur Nagar. Taking cognizance of the aforesaid letter of the petitioner dated 1.7.2013, the District Inspector of Schools vide his letter dated 10.7.2013 fixed 12.7.2013 as the date for hearing whereby opportunity was afforded to the petitioner and the Manager of the College. On 12.7.2013 both the parties did not put in their presence, hence 28.8.2013 was fixed for hearing vide letter dated 17.8.2013. On the said date the Manager of the institution Shri Manmohan Singh did not appear but the petitioner was present on the said date and he moved his written statement. After hearing the parties and considering the evidence available on record the District Inspector of Schools, Kanpur Nagar found that while passing the suspension order, the provisions of the Act were not followed. The District Inspector of Schools passed an order on 23.8.2013 disapproving the suspension of the petitioner. The petitioner submitted his joining on the post of Principal of the institution on 24.8.2013. On 25.8.2013 the petitioner was present in the institution but no meeting of the Committee of Management was held. By the impugned order dated 25.8.2013 the Manager, Committee of Management of the institution referred to an alleged emergent meeting of the Committee of Management held on 25.8.2013 in which a decision was taken to terminate the services of the petitioner. The petitioner was directed to hand over the charge of the Principal of the College to one Santosh Kumar Sachan as the Officiating Principal.

9. Thereafter the petitioner was served with a notice dated 27.8.2013 along with a copy of the enquiry report intimating that the meeting of the Committee of Management would again be held on 5.9.2013 and granting time to the petitioner to file his objections against the enquiry report. The petitioner filed his detailed objections against the enquiry report on 5.9.2013. By the fresh impugned order dated 5.9.2013 the Manager has referred to a resolution of the Committee of Management passed on the same day by which a decision was taken to terminate the services of the petitioner. However, no copy of the resolution passed by the Committee of Management on 5.9.2013 had been supplied to the petitioner.

10. Learned counsel for the petitioner submitted that in regard to the charges levelled against the petitioner in the charge sheet, the petitioner submitted his explanation in his reply in regard to Account No.OD-38 stating that due to widening of National Highway, certain portion of the school building was demolished and there was no aid provided by the State Government for maintenance of the school building nor there was other source of income of the College, as such on the request of the institution, the overdraft account number was permitted by the bank and in pursuance thereof, the class rooms were constructed and at that time, there was no Committee of Management in the College. As soon as the Committee of Management was constituted vide election dated 30.5.2011, which was accorded recognition by the District Inspector of Schools vide order dated 6.6.2011, bill vouchers and expenditure were produced before the Committee of Management, which were duly accepted by the Committee of Management in its meeting dated 7.7.2011. The Committee of Management accepted the expenditures incurred by way of O.D. No.38 in the meeting dated 2.11.2011 and an amount of Rs.4,15,455/- was paid to the bank from the account, which was made available by the Government in pursuance of award and damages by National Highway Authority of India on 4.10.2011. The allegation in regard to embezzlement of amount by opening O.D. Account No.38 was made due to change of Manager in the Committee of Management.

11. In regard to charge no.2, it is submitted that the allegation against the petitioner has been levelled that while account No.52512010000730 was operating, a parallel account SI-08 was opened in United Merchandise Cooperative Bank Ltd, Lal Bangla, Kanpur. The allegation is based on incorrect statement. The Account No.52512010000730 is Vittviheen from which the payment of teachers and other employees of the College are being made from the management source and Account No.SI08 is for maintenance of building of the institution and it is operating prior to coming the Committee of Management in existence and it was operated by the Principal and one senior most Lecturer Shri Rakesh Kumar under joint signatures of Manager and Principal in view of Government Order dated 27.1.2014. The Account No.SI08 was in respect of maintenance of School building and as such, the amount paid by the National Highway Authority of India was deposited in Account No.SI08. This account was operated by Ex-Manager Kulwantjeet Singh Gill and the petitioner and after passing no confidence motion against Shri Kulwantjeet Singh Gill and when new Management Committee was formed under Manmohan Singh, Manager, this account was also operated by Manmohan Singh and the petitioner.

12. Learned counsel for the petitioner submitted that the entire enquiry has been held in utter disregard to the principles of natural justice. The Regulations 36 and 37 of Chapter III of the U.P. Intermediate Education Act, 1921 have been complied in breach. The Management chose to by-pass the said regulation completely. The petitioner was not provided the required documents. Neither the statement of the petitioner was recorded nor the petitioner was subjected to any cross-examination. The Committee of Management took a decision to dispense with the services of the petitioner and the termination order dated 25.8.2013 was also issued to the petitioner. The said decision was taken without supplying the enquiry report to the petitioner and without affording the petitioner any opportunity to object against the enquiry report and place his version before the Committee of Management. By the notice dated 27.8.2013 a copy of the enquiry report was supplied to the petitioner and a fresh meeting of the Committee of Management convened for 5.9.2013. The convening of the fresh meeting of the Committee of Management on 5.9.2013 was an attempt to remove the basic fault, which had arisen in the order dated 25.8.2013 without supplying a copy of the enquiry report to the petitioner. The issuance of the notice dated 27.8.2013 and holding of the fresh meeting on 5.9.2013 is meaningless as the decision for terminating the services of the petitioner had already been taken on 25.8.2013. The petitioner filed his detailed objections against the enquiry report in the meeting of the Committee of Management held on 5.9.2013. There does not exist any charge of misconduct against the petitioner. The Manager was biased on account of management dispute. Thus the initiation of the disciplinary proceedings itself was the result of the personal bias and malafide. He has relied upon judgments in Subhash Chandra Sharma vs. Managing Director, U.P. Cooperative Spinning Mills Federation Ltd, 1999 (4) AWC 3227; Nishith Chandra Tiwari vs. U.P. Sahkari Gramya Vikash Bank Ltd., Lucknow 2003 (2) ESC 1170; Hardev Singh vs. Committee of Management, B.D. Santosh Singh Khalsa Inter College and others 2004 (3) AWC 2770; Mohd. Javed Khan vs. State of UP and ors 2008 (1) ADJ 284; Vijay Kumar Sinha vs. State of UP (DB) 2011 (4) ESC 2949; Iftekhar Ahmad vs. State of UP and ors 2013 (5) ADJ 168 in support of his submission.

13. A counter affidavit of Shri Komal Yadav, District Inspector of Schools, Kanpur Nagar has been filed stating that the institution is a recognized and aided minority institution upto Intermediate, in which services of the teaching and non-teaching staff are governed under the provisions of U.P. Intermediate Education Act, 1921 and the provisions of Payment of Salary Act, 1971 as well as Government Orders issued from time to time. Vide order of the Manager of the institution dated 29.6.2013 the petitioner was placed under suspension and for enquiry a Three-Members Committee was constituted. After suspension the petitioner approached the Manager of the institution for revoking suspension order vide his letter dated 1.7.2013 and the same was endorsed to the District Inspector of Schools, Kanpur Nagar. Taking cognizance of the aforesaid letter of the petitioner dated 1.7.2013, the District Inspector of Schools vide his letter dated 10.7.2013 fixed 12.7.2013 as the date for hearing whereby opportunity was afforded to the petitioner and the Manager of the College. On 12.7.2013 both the parties did not put in their presence, hence 28.8.2013 was fixed for hearing vide letter dated 17.8.2013. On the said date the Manager of the institution Shri Manmohan Singh did not appear but the petitioner was present on the said date and he moved his written statement. After hearing the parties and considering the evidence available on record the District Inspector of Schools, Kanpur Nagar found that while passing the suspension order, the provisions contained in Chapter-III of Intermediate Education Act, 1921 were not followed. Section 37 of Chapter-III of the said Act provides that after obtaining report and recommendation from the enquiry officer the Committee of Management shall hold a meeting to consider the said proceeding report and recommendation and take decision and thereafter, send it to the District Inspector of schools or Regional Joint Director of Education for approval, which was not followed by the Committee of Management.

14. Although a letter dated 22.8.2013 signed by members of the Committee of Management was made available to the office of the District Inspector of Schools, which is addressed to the Manager of the institution and endorsed by the District Inspector of Schools, in which it is clearly mentioned that the Principal of the institution has been placed under suspension but the information was not forwarded to the executive members of the institution. With respect to the aforesaid matter, no urgent or ordinary meeting was convened. This also shows that provision of sub-section 8 of Section 16-Chha of U.P. Intermediate Education Act, 1921 was also not followed. Moreover, non-appearance of the Manager of the institution on the date fixed i.e. 12.7.2013 and 28.8.2013 by the District Inspector of Schools also shows that act of placing the petitioner under suspension by the Manager of the institution is not in accordance with the provisions of U.P. Intermediate Education Act. As such vide office letter dated 23.8.2013 under sub-section 8 of Section 16-Chha of UP Intermediate Education Act the District Inspector of Schools disapproved the suspension order of the petitioner passed by the Manager of the institution and vide order dated 11.7.2013 attested signature of the officiating Principal Shri Santosh Kumar Sachan was cancelled and signatures of the petitioner were attested. The Manager of the institution terminated the services of the petitioner vide his order dated 5.9.2013.

15. Shri P.N. Saxena, Senior Advocate assisted by Shri Alok Dwivedi, appearing on behalf of respondent nos. 4 and 5 submits that the institution is a minority institution protected under Article 30 of Constitution of India. Section 16-G of Act provides condition of service of Heads of the institutions, teachers and other employees. There was no Committee of Management working in the institution since the years 2005 to 6.6.2011. Thereafter, the present Committee of Management came into power with Kulwant Singh Gill as Manager on 6.6.2011. Mr. Gill started harassing the staff of the institution and embezzled money of the institution. Therefore, he was removed from the post of Manager by way of no confidence motion on 6.7.2012 and in his place the present Manager was elected as Manager of the institution. The petitioner, who was the Principal of the institution, had withdrawn several lakhs from two accounts of the institution, which were opened and operated by him. The Committee of Management in its meeting dated 17.12.2012 asked about the bills, vouchers, cash book and other documents regarding the expenses of the said amount. The petitioner accepted that such documents are with him and the Ex-Manager Kulwantjit Singh Gill also stated that he has no any such documents and all the documents are with the petitioner. The petitioner and Shri Gill both were attended and signed the minutes of the meeting dated 17.12.2012.

16. It is submitted that thereafter the petitioner concocted a false story that the bills, vouchers, cash book and other documentary proof in respect of expenses of withdrawal amount were taken by the ex-Manager Shri Gill on 24.12.2012 only to hide the embezzlements made by him. The petitioner annexed some letters with his supplementary affidavit filed on 7.7.2015, which are subsequent to the meeting of the Committee of Management dated 17.12.2012 in which Ex. Manager Kulwantjit Singh Gill refused and stated that he has no such documents as claimed by the petitioner and all the documents are with the petitioner. The Manager vide letter dated 27.12.2012 instructed the petitioner for lodging the first information report but the petitioner refused to do so, saying that the matter relates to the dispute of management. In fact, the dispute was in respect of documents of the institution taken away by the Ex-Manager as claimed by the petitioner for which the petitioner was custodian.

17. When the petitioner did not produce any bills, vouchers, cash book and other documentary proof towards expenses of huge withdrawal of money of the institution, he was suspended on 29.6.2013 and the charge sheet dated 5.7.2013 containing five charges was issued and the enquiry was conducted by the Three-Member Enquiry Committee. The entire records relied upon by the Committee of Management were provided to the petitioner alongwith the charge sheet. The petitioner required documents vide letter dated 27.7.2013 and the same was replied by the Manager on 29.7.2013 stating that the statement of account of the bank showing withdrawals of the amount and other documents also provided along with the charge sheet and he was required to submit bills, vouchers, cash book and other documentary proof, if any, towards the expenses of money withdrawn by him. The petitioner submitted his reply to the charge sheet on 6.8.2013 and accepted opening of accounts, operation of the accounts by himself, withdrawals of huge money. The petitioner appeared before the Enquiry Committee on 19.8.2013 and submitted his written statement. The petitioner did not produce any bills, vouchers, cash book and other documentary proof. After completion of proper enquiry in accordance with Section 16-G read with Regulation 35, 36 and 37 of Chapter-III framed under the Act by the Three-Member Enquiry Committee submitted the enquiry report before the Committee of Management of the institution on 20.8.2013. The Committee of Management of the institution supplied the enquiry report to the petitioner with relevant documents vide notice dated 27.8.2013 and instructed him to appear before the Committee of Management on 5.9.2013. The petitioner appeared before the Committee of Management on 5.9.2013 and submitted his written submissions and he was heard orally. The petitioner orally asserted that the documents had been taken away by the Ex-Manager. The Committee of Management came to the conclusion that the entire relied upon documents were provided to the petitioner. The Committee of Management found that the Enquiry Committee considered the entire written submissions as well as oral submissions made by the petitioner. The enquiry was properly conducted by the Enquiry Committee by giving the petitioner full opportunity of hearing and the oral enquiry was also conducted by the Enquiry Committee. The petitioner was cross-examined by the Enquiry Committee. He was required to submit such bills, vouchers and other documentary proof towards the expenses of embezzled money made by him but he failed to produce the same. Therefore, no oral evidence was required and the petitioner himself does not want anything further.

18. Shri P.N. Saxena submitted that the Committee of Management of the institution considered all aspects of the matter and after considering the enquiry report, written and oral submission of the petitioner, the Committee of Management arrived at a conclusion that the charges levelled against the petitioner are found proved except charge no.4. By resolution dated 5.9.2013 the Committee of Management decided to terminate the services of the petitioner and passed an order of termination dated 5.9.2013 for embezzlement of huge amount of the institution and insubordination. The entire disciplinary proceeding against the petitioner was conducted strictly in accordance with Section 16-G read with Regulation 35, 36 and 37 of Chapter-III framed under the Act. The petitioner was provided proper opportunity of hearing and he had submitted his written statement. The oral enquiry was also conducted by the Committee and the petitioner was cross-examined by the Enquiry Committee as well as by the Committee of Management.

19. Shri P.N. Saxena submitted that the petitioner had taken Rs.5 lacs overdraft from the bank and opened overdraft account namely OD-38 for running the institution, when there was no Committee of Management of the institution. The aforesaid explanation is wrong inasmuch as the Committee of Management came into power and started functioning since 6.6.2011 and the huge amount was withdrawn after 6.6.2011. The petitioner had withdrawn Rs.50,000/- on 10.5.2011, Rs.1,20,000/- on 11.5.2011 and Rs.20,000/- on 2.6.2011 just before few days when the Committee of Management came into power. After the Committee of Management came into power, he had withdrawn Rs.10,000/- on 18.6.2011, Rs.25,000/- on 2.11.2011, Rs.2,60,000/- on 16.1.2012 and Rs.1,50,000/- on 8.5.2012.

20. Shri P.N. Saxena submitted that the petitioner opened the new Account No.SI-08 in United Mercantile Cooperative Bank Ltd, Harjinder Nagar in the name of the institution and deposited the compensation amount of Rs.36,74,856/- in the aforesaid account and withdrew huge amount from the said account and embezzled the same. As per Clause V(a), (b), (c) of the Scheme of Administration of the institution, the account of the institution must be operated by the Treasurer and the Manager jointly but the petitioner as Principal and the Ex-Manager Sri Gill opened the account and operated the same and siphoned the aforesaid amount of the institution. He submits that fan, exhaust fan, wood and iron guarders etc. of the building were sold away and embezzled the said amount. More than Rs.5 lacs from the compensation amount awarded by the National Highways Authority of India for acquisition of the land and building of the institution was paid to the counsel of Mr. Gill, Ex-Manager towards the fee and expenses of cases filed in respect of no confidence motion against Mr. Gill. The petitioner had again withdrawn Rs.1,00,000/- from the fund of the institution in the month of May, 2013 for which no record towards the expenses is available in the institution. The aforesaid fact came into knowledge of the Committee of Management after termination of services of the petitioner. He submitted that considering the gravity of the charges levelled against the petitioner, the petitioner is not liable to be retained in service and the writ petition may be dismissed with costs.

21. I have considered the submission made by the learned counsels of respective parties and have also perused the record.

22. In this matter, Shri Manmohan Singh, the present Manager of the Committee of Management of the institution vide an order dated 29.6.2013 had placed the petitioner under suspension and constituted a Three-Members Committee for conducting the enquiry in the matter. Accordingly, the Manager proceeded to issue a charge sheet against the petitioner on 5.7.2013. Immediately after receiving the charge sheet the petitioner moved a detailed representation on 23.7.2013 with a request for supply of documents mentioned in the representation for enabling him to submit his reply and for establishing his defence. However, for the reasons best known to the Manager, the same was declined. The Enquiry Committee vide notice dated 14.8.2013 had asked to the petitioner fixing 19.8.2013 for his appearance and to place written version in regard to the charges levelled against the petitioner. It is not disputed that the petitioner had actually appeared before the Enquiry Committee on the date fixed but it is alleged that the written reply of the petitioner was not accepted by the Enquiry Committee. Therefore, he had sent the same through speed post to the Chairman of the Enquiry Committee on 19.8.2013.

23. It clearly transpires from the record that in the present matter, no oral evidence has been adduced in the enquiry and even no further date, time and place had not been fixed by the Enquiry Committee after 19.8.2013. It is further alleged that the Enquiry Committee did not fix any other date to cross-examine the witnesses relied upon and as such proceeded into the matter and submitted ex-parte report. On 21.8.2013 the present Manager had issued notice to the petitioner intimating that the meeting of the Committee of Management was scheduled to take place on 25.8.2013 for taking the decision on the enquiry report submitted by the Enquiry Committee. In this background again on 23.8.2013 the petitioner had requested the Manager for supplying the enquiry report so that the petitioner may also appear before the Committee of Management and submit his reply in regard to the enquiry report submitted by the Enquiry Committee. After suspension the petitioner approached the Manager of the institution for revoking suspension order vide his letter dated 1.7.2013 and the same was endorsed to the District Inspector of Schools, Kanpur Nagar. Taking cognizance of the aforesaid letter of the petitioner dated 1.7.2013, the District Inspector of Schools vide his letter dated 10.7.2013 fixed 12.7.2013 as the date for hearing whereby opportunity was afforded to the petitioner and the Manager of the College. On 12.7.2013 both the parties did not put in their presence, hence 23.8.2013 was fixed for hearing vide letter dated 17.8.2013. On the said date the Manager of the institution Shri Manmohan Singh did not appear but the petitioner was present on the said date and he moved his written statement. On the same date on 23.8.2013 the District Inspector of Schools acted upon the representation moved by the petitioner for revocation of his suspension and the proposal of the Committee of Management for suspension of the petitioner was disapproved. Immediately, on 24.8.2013 the petitioner had submitted his joining after disapproval of the order of suspension by the District Inspector of Schools.

24. In this background the Committee of Management had convened the meeting on 25.8.2013 and without supplying the enquiry report as has been asked by the petitioner vide his letter dated 23.8.2013 it has been resolved to dispense with the services of the petitioner from the post of Principal of the institution. The proceeding of the meeting dated 25.8.2013 has also been brought on record as Annexure-18 to the writ petition. A perusal of the same, it is apparent that the Committee of Management had taken a decision for dispensation of services of the petitioner on the said date. Surprisingly once the Committee of Management had taken a decision on 25.8.2013 and probably on good advice the Committee of Management had again, even though they have taken a decision for dispensation of service of the petitioner on 25.8.2013, issued the notice to the petitioner alongwith the enquiry report intimating the next date for hearing of petitioner's objections on the enquiry report on 5.9.2013. The petitioner filed detailed objections alongwith covering letter on 5.9.2013 against the enquiry report. The afore-mentioned facts clearly give an impression to the Court that once the decision was already taken for terminating the services of the petitioner on 25.8.2013, and admittedly the enquiry report was supplied alongwith the notice thereafter, therefore, subsequent proceeding specially the meeting of the management on 5.9.2013 was only eye-wash.

25. It is trite law that even if an employee does not participate in the enquiry, the employer-Management has to prove the charges. It is also admitted situation that the petitioner had submitted his reply to the charge sheet in absence of relevant materials, which were never supplied by the employer to him. This is also apparent from the record that no oral evidence has been adduced in the enquiry and at no point of time the petitioner was given liberty to cross-examine the witnesses.
26. In the present matter, it has been pleaded that the entire enquiry has been held in utter disregard to the principle of natural justice. Regulations 35 and 36 of Chapter-III of UP Intermediate Education Act, 1921 have been complied with in breach. The Manager was biased in the matter. Thus the initiation of disciplinary proceeding itself was the result of the personal bias and malafide. In the present matter, the question, which begs determination in this case is to as to what extent the provision of Intermediate Education Act and the relevant Regulations, which deals with the disciplinary proceedings are applicable to the minority institution. The same question has been answered by this Court in Iftekhar Ahmad vs. State of UP & ors (supra). The relevant paragraphs are reproduced hereinafter:-

"20. Article 29 and 30 have increasingly engaged the attention of the Supreme court. A survey of the law on this subject would be necessary and can start with Kerala Education Bill,1957, Re v.,1959 SCR 995. In the said case a question arose whether State maintained, State aided and State recognized educational institution can be dealt with differently and if minority institution within the meaning of Article 30 of the Constitution should have a fundamental right in the matter of recognition of their educational institution. The Supreme Court answered the said query in following terms:-

"Para 36, .....The right which the minorities now claim is something more. They want not merely freedom to manage their own affairs, but they demand that the State should actively intervene and give to their educational institutions the imprimatur of State recognition.That, in my opinion, is not within Article 30(1). The true intention of that article is to equip minorities with a shield whereby they could defend themselves against attacks by majorities, religious or linguistic, and not to arm them with a sword whereby they could compel the majorities to grant concessions. It should be noted in this connection that the Constitution has laid on the States various obligations in relation to the minorities apart from what is involved in Article 30(1). Thus, Article 30(2) provides that a State shall not, when it chooses to grant aid to educational institutions, discriminate against institutions of minorities based on language or religion. Likewise, if the State frames regulations for recognition of educational institutions, it has to treat all of them alike, without discriminating against any institution on the ground of language or religion. The result of the constitutional provisions bearing on the question may thus be summed up:

(1)The State is under a positive obligation to give equal treatment in the matter of aid or recognition to all educational institutions, including those of the minorities, religious or linguistic.

(2) The State is under a negative obligation as regards those institutions, not to prohibit their establishment or to interfere with their administration."

25.The Constitution Bench of Eleven Hon'ble Judges again considered this issue along with the admission in the professional colleges in T.M.A. Foundation v. State of Karnataka, (2002) 8 SCC 481. The following paragraphs are relevant in the present controversy:-

"The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions."

"Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriate relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an Educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an Educational Tribunal in a State -- the object being that the teacher should not suffer through the substantial costs that arise because of the location of the Tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the Government."

26. Subsequently the Supreme Court again considered the same issue in P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537. Paragraph 103 is relevant in the present case which is extracted here under below:-

"To establish an educational institution is a fundamental right. Several educational institutions have come up. In Kerala Education Bill "minority educational institutions" came to be classified into three categories, namely, (i) those which do not seek either aid or recognition from the State; (ii) those which want aid; and (iii) those which want only recognition but not aid. It was held that the first category protected by Article 30(1) can "exercise that right to their hearts' content" unhampered by restrictions. The second category is most significant. Most of the educational institutions would fall in that category as no educational institution can, in modern times, afford to subsist and efficiently function without some State aid. So it is with the third category. An educational institution may survive without aid but would still stand in need of recognition because in the absence of recognition, education imparted therein may not really serve the purpose as for want of recognition the students passing out from such educational institutions may not be entitled to admission in other educational institutions for higher studies and may also not be eligible for securing jobs. Once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition."

27. In Secretary, Malankara Syrian Catholic College v. T. Jose, (2007) 1 SCC 386, the Supreme Court reiterated the earlier law in following terms:-

"The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:

(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:

(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;

(b) to appoint teaching staff (teachers/lecturers and Headmasters/Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees;

d) to use its properties and assets for the benefit of the institution.

(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-à-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.

(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).

(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.

(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1)."

"Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions maintained out of the State funds. These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with non-minority educational institutions. Such standards can be attained and maintained only by having well-qualified professional teachers. An institution can have the services of good qualified professional teachers only if the conditions of service ensure security, contentment and decent living standards. That is why the State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff."

" We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai. The State can prescribe:

(i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments,

(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff,

(iii) a mechanism for redressal of the grievances of the employees,

(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.

In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions."

28. In a recent judgment in Sindhi Education Society v. Chief Secretary, Government of NCT of Delhi, (2010) 8 SCC 49 the Supreme Court observed as under :-

"Last of the judgments, which has some bearing on the subject in question, is on the principle reiterated by a Bench of this Court in Malankara Syrian Catholic College,where the Court again dealt with the aided minority educational institutions and terms and conditions of services of employees. The Court in para 12 of the judgment framed the following two questions: (SCC p. 393)
"12. The rival contentions give rise to the following questions:

(i) To what extent, the State can regulate the right of the minorities to administer their educational institutions, when such institutions receive aid from the State?

(ii) Whether the right to choose a Principal is part of the right of minorities under Article 30(1) to establish and administer educational institutions of their choice. If so, would Section 57(3) of the Act violate Article 30(1) of the Constitution of India?"

The answer to Question (i) was provided in para 21 while Question (ii) was answered in paras 27 and 28 of the judgment which read as under: (SCC pp. 400 & 404)

"21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai. The State can prescribe:

(i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments,

(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff,

(iii) a mechanism for redressal of the grievances of the employees,

(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.

29. Principal of law emanates from the above judgements are that Article 29 and 30 of the Constitution is under the head of Cultural and Educational Rights. Article 29 is in two parts 29 (1) provides that any section of citizen have a fundamental right to conserve its language, script or culture. Any section society can get its protection irrespective of their religion.

32. But Article 30 (1) of the Constitution provides that all religious or lignuistic minorities have the right to establish and administer educational institution of their choice. A combined reading of Article 29 and 30 of the Constitution makes it clear that there are four distinct rights:-

(1) any section of citizen has a fundamental right to conserve its language or culture;

(2) all the religious and linguistic minorities have fundamental right to establish and administer education institution of their choice in terms of Article 30 (1) of the Constitution;

(3) the State shall not discriminate any education institution while sanctioning financial grant to it on the basis of religion, race or caste and

(4) the citizen of any religion will not be denied admission into any State maintained or aided education institution on the ground of religion, caste race or language."

27. Section 16-E of the Intermediate Education Act, 1921 also lays down detailed procedures for appointment of head of institution and teachers. Section 16-G provides for service conditions of headmasters, principal and teachers of recognised institutions framed under Chapter III of regulations.

28. Under the sub-head of Punishment, Inquiry and suspension detail procedure is provided from regulation 31 to regulations 45. Regulation 35 and 36 provides a detailed procedure for the disciplinary proceedings against the Principal and teachers. The relevant Regulations read as under:

"35 On receipt of adverse report regarding complaint or charges of serious nature, the Committee shall appoint the Principal or Headmaster as Enquiry Officer in respect of teachers and other employees ( or Manager himself would enquire into if he has been delegated with the rights under the rules by Committee) and in case of Principal or Head Master a small sub-committee be appointed which will have instructions to present the report as soon as possible.

In respect of Fourth class employees Principal/Headmaster may appoint a senior teacher as Enquiry Officer.

36 The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the employee charged and which shall be so clear and precise as to give sufficient indication to the charged employee of the facts and circumstances against him. He shall be required within three weeks of the receipt of the charge sheet to put in a written statement of his defence and to state whether he desired to be heard in person. If he or the inquiring authority so desires, an oral enquiry shall be held in respect of such of the allegations as are not admitted. At that enquiry such oral evidence will be heard as that inquiring authority considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person, and to have such witnesses called as he may wish; provided that the enquiry authority conducting the enquiry may for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The inquiring authority conducting the enquiry may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the employee.

Clause (1) shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him.

All or any of the provisions of Clause (1) may for sufficient reasons to be recorded in writing be waived where there is difficulty in observing exactly the requirements thereof and those requirements can in the opinion of the inquiring authority be waived without injustice to be person charged."

29. A plain reading the regulations brings out that the principle of natural justice is ingrained in the Regulations. The importance of the natural justice need not be elaborated as it is well settled that denial of natural justice in a modern society is not acceptable. The enquiry should be held after giving full opportunity to the delinquent employee to make his comments and criticism upon the materials against him. A refusal or not furnishing adverse materials upon which the allegation was based, may amount to denial of reasonable opportunity. It is incumbent upon the employer to supply complete materials on the delinquent employee. In the present matter, admittedly relevant documents have not been supplied, even though the Manager had sufficient time to proceed against the Ex-Manager, if the allegation was so serious to the extent that the relevant documents were taken away by him. Even otherwise also the present Manager could lodge a first information report regarding non-availability of the relevant papers in the College. But such efforts were not made. All these facts lead to the bias against the delinquent employee and also violates principle of natural justice.

30. The provisions of Regulations 35 and 36 of the Act would be applicable in the case of minority institution, if they are recognized institutions and as such denial of natural justice to a Principal, who is employee in a minority institution, cannot be accepted. It would be appropriate to refer certain judgments in this regard : Tariq Ayyub V. State Of U.P. Civil Misc. Writ Petition No. 30642 Of 2010: Mohammad Ateeq Siddique V. State of U.P. (2011)3 UPLBEC 2547: Committee of management, Rehbar-E-Aam Muslim Inter College V. District Inspector of Schools(2008)70 ALR 687, Faheem Haider v. State of U.P.:(2011) 84 ALR 27.

31. In the present case, no oral evidence has been adduced in the inquiry. Day, date, time and place was not fixed by the Enquiry Committee and the entire inquiry was not concluded as per the Regulations. The last notice sent to the petitioner on 27.8.2013 for holding of fresh meeting of the Committee of Management of the institution on 5.9.2013 was meaningless when the decision to terminate his services has already been taken on 25.8.2013. Nothing has been brought on record to indicate that the management has taken some sincere efforts regarding realisation of the alleged siphoning of amount by the delinquent employee from the minority institution.

32. It is a well known principle of law that justice should not only be done but manifestly and undoubtedly seen to be done. Justice can never be seen to be done, if a man acts as a judge in his own cause or is himself interested in its outcome. The doctrine of bias is thus based on two important principle (i) bias is insidious thing inasmuch as an adjudicating authority may bonafide believe that he is acting impartially and yet his mind may unconsciously be affected by bias.

33. The management of a minority educational institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution to oppress or exploit its employees.

34. Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action.

35. The issue what would be the effect, if the date, time and place is not fixed and what procedure should be adopted if the employee refused to participate in the inquiry has been considered by a Division Bench of this Court in Writ A 43331 of 2000 (Sohan Lal v. U.P.Cooperative Federation Ltd. And Another) decided on 11.01.2013, wherein a large number of cases of the Supreme Court and of this Court has been considered. The Division Bench has also considered the effect of not adducing any oral enquiry. It has relied on the judgment of the Supreme Court in State of U.P. v. Saroj Kumar Sinha reported (2010)2 SCC 772; Roop Singh Negi v. Punjab National Bank,(2209) 2 SCC 570; Subhash Chandra Sharma v. Managing Director and another reported 2000 (1) UPLBEC 541; Subhash Chandra Sharma v. U. P. Cooperative Spinning Mills and others reported 2001(2) UPLBEC 1475.

36. Cases involving serious charges of financial irregularities and misconduct, where the amount involved runs into lacs and crores, are allowed, only on the ground that no enquiry has been held as per law laid down in Iftekhar Ahmad's case (supra). Apathy in such matters not only results in guilty officers/employees getting away with their misdeeds to the detriment of the department and the common man but it also leads to unnecessary litigation before the courts adding to their burden resulting in waste of time, energy and money.

37. After careful consideration of the law as indicated above, and totality of the facts and circumstances of this case, in my view the inquiry against the petitioner was vitiated on the ground mentioned herein above and as such, the impugned termination orders dated 25.8.2013 and 5.9.2013 need to be set aside and are accordingly set aside.

38. The writ petition succeeds and is allowed. However, the Committee of Management of the institution is at liberty to give opportunity to the petitioner and conduct the enquiry in terms of the Regulations 35 and 36 of the Chapter III of the U.P. Intermediate Education Act, 1921. The petitioner is directed to cooperate in the enquiry.

Order Date :- 04.9.2015
RKP
(Mahesh Chandra Tripathi,J.)

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