Sneh Rani Jain v. State of M. P. — 1976 DIGILAW 98 (MP)

ORDER Singh, J.- 1. The petitioner, Dr. (Km) Sneh Rani Jain, was Assistant Professor in the Department of Pharmaceutical Science in the University of Saugar. In October 1972 the petitioner was also appointed as Warden of Girls' Hostel known as 'Nivedita Hostel'. 19th March 1973 was the day of Holi. On that date some boy students entered the compound of Nivedita Hostel. According to the petitioner, the students misbehaved and used filthy and abusive language for the girls and the petitioner. The petitioner pasted a notice on the gate of the hostel which is as follows : "VISITORS AND FRIENDS" Holi brings Fun but not Goondaism? only student leader Mr. Uttam Khatik and his group boys came to Hostel twice, damaged the Hostel and behaved absurdly dangerous. Please join me in condemning their behaviour publicly : Abusers : Reflected the Black deeds of their mothers and dirty origin of their seeds? Lady Warden" This notice offended the students. On 22nd March 1973 the petitioner was called by the Vice-Chancellor and she submitted her resignation which was accepted on the same date. The Vice-Chancellor further directed that a report be sent to the Executive Council about the resignation. The petitioner contends that the said resignation is not in true sense a resignation and that it was obtained under dureess. 9. There were reports in the newspapers about the incident that happened on 19th March 1973. As public interest was aroused, the State Government by notification issued on 9th April 1973 appointed a one man Commission consisting of Shri K. N. Shukla, the then District Judge, Saugar, under section 3 of the Commission of Inquiry Act, 1952, to enquire into and report on the following matters: - (i) Did some of the students University of Sagar misbehave with the inmates of Nivedita Hostel on the 19th March 73 and, if so, in what manner? (ii) who was responsible for the mis-behaviour, if any? (iii) was adequate and prompt action taken in connection with this incident and if not, who was responsible for any short comings ? (iv) was the behaviour of any person connected with the alleged incident blame-worthy in any manner and, if so, how? " 3. The Commission submitted its report to the Government on 31st December 1973. (iii) was adequate and prompt action taken in connection with this incident and if not, who was responsible for any short comings ? (iv) was the behaviour of any person connected with the alleged incident blame-worthy in any manner and, if so, how? " 3. The Commission submitted its report to the Government on 31st December 1973. On the first question, the Commission's report was that there was no misbehaviour by the boy students of the University with the inmates of Nivedita Hostel on 19th March 1973. The Holi was celebrated by the boys as they had been celebrating for the past several years by singing and dancing in the Girls' Hostel compound outside the Hostel building and leaving the place quitely. The boys entered the Hostel compound against the orders of the petitioner and sang Holi songs in which they referred to her name. On the second question, the Commission held that no one misconducted or misbehaved with the inmates of the Nivedita Hostel. On the third question, the Commission found that no incident happened which required any adequate and prompt action, and that the Vice-Chancellor through the Proctor started proceedings on the complaint of the Warden which on facts was not true. As regards the fourth question, the Commission held that the petitioner's conduct was blame-worthy. 4. The Executive Council of the University Considered the report of the Vice-Chancellor and the representation of the petitioner in the matter of her resignation and the following resolution was passed on 16th October 1974 : "Resolved that the matter has already been decided, reported and noted. Resolved that her representation is rejected." 5. The petitioner thereafter filed the present petition under Article 226 of the Constitution praying that the report of the Commission, the order of the Vice-Chancellor dated 22nd March 1973 accepting her resignation and the resolution of the Executive Council dated 16th October 1974 be quashed. 6. The first point raised by the learned counsel for the petitioner for challenging the report of the Commission is that one of the students involved in the incident, namely, Subodh Pandey, was closely related to Shri K.N. Shukla and, therefore, Shri Shukla was not competent to function as the Commission. All that has been stated in paragraph 31 of the petition on this point is that Subodh Pandey was closely related to Shri Shukla. All that has been stated in paragraph 31 of the petition on this point is that Subodh Pandey was closely related to Shri Shukla. The exact relationship is not stated in the petition. Shri Shukla who is respondent No.2 in the petition has not filed any return or affidavit. The State Government has, however, filed an affidavit sworn in by Subodh Pandey. In this affidavit, it is stated that Subodh Pandey's mother who died long back was distantly related to Shri Shukla It is further stated that there was no contact between the family of Subodh Pandey and the family of Shri Shukla after the death of Pandey's mother which took place about 23 years back. It is no doubt true that when allegations of personal bias are made against a person functioning as an authority or tribunal, it is desirable that affidavit should be filed by the person concerned. However, in the circumstances of the case, I do not think that the allegation of bias resting on the ground of relationship with Subodh Pandey can be said to have been substantiated although no affidavit has been tiled by Shri Shukla. As earlier stated, the exact relationship has not been stated in the petition and the affidavit of Subodh Pandey shows that though Shri Shukla was distantly related to him there was no contact between his family and the family of Shri Shukla for the last so many years. I am, therefore, not prepared to hold that Shri Shukla was not competent to function as the Commission because of his relationship with Subodh Pandey. There are also other allegations in the petition that the Commission did not act fairly towards the petitioner and did not permit her to properly cross-examine the witnesses and did not give her sufficient opportunity to examine her witnesses. Even though at the request of the petitioner record of the inquiry was made available at the hearing, the learned counsel was unable to substantiate these allegations from the record. I have, therefore, no hesitation in rejecting the ground of bias raised by the petitioner. 7. It was next contended by the learned counsel for the petitioner that the Commission exceeded its jurisdiction in giving its finding on the question whether the resignation submitted by the petitioner to the Vice-Chancellor was voluntary or under duress. I have, therefore, no hesitation in rejecting the ground of bias raised by the petitioner. 7. It was next contended by the learned counsel for the petitioner that the Commission exceeded its jurisdiction in giving its finding on the question whether the resignation submitted by the petitioner to the Vice-Chancellor was voluntary or under duress. It was conceded by the learned Government Advocate and also by the learned counsel appearing for the University that the question whether the petitioner's resignation was voluntary or whether it was obtained under duress was not submitted for inquiry to the Commission. The Commission was also alive to this aspect of the matter. In paragraph 49 of its report the Commission stated that it would not bother about the question whether the petitioner's resignation was given voluntarily or under duress, and that it will merely consider the incident for properly appreciating the conduct and the motives of the parties involved. I have earlier set out the questions that were referred to the Commission. "The alleged incident" referred to in the fourth question was in the context clearly of the incident of 19th March 1973 which was the subject matter of question No. and not any incident which took place later. The Commission was, therefore, to report on question No.4 whether the behaviour of any person connected with the incident of 19th March 1973 was blameworthy in any manner. The Commission could, no doubt, take into account the facts preceding and succeeding the incident of 19th March 1973 in giving its opinion on question No.4; but it could not directly or indirectly pronounce upon the validity or otherwise of the resignation submitted by the petitioner. Indeed, this position, as earlier stated, is not disputed by the learned counsel appearing for the parties. The Commission, although conscious of the fact that it had no jurisdiction to give its opinion on the question of resignation of the petitioner, in paragraph 55 observed that "the petitioner wrote out her resignation in a spirit of defiance and disrespect for everybody and left the Vice-Chancellor's room in a huff." These observations, in my opinion, contain a finding by necessary implication that the petitioner submitted her resignation voluntarily and not under duress. As the Commission had no jurisdiction to pronounce upon the voluntariness or otherwise of the petitioner's resignation, this finding of the Commission must, in my opinion, be quashed. 8. As the Commission had no jurisdiction to pronounce upon the voluntariness or otherwise of the petitioner's resignation, this finding of the Commission must, in my opinion, be quashed. 8. The petitioner's learned counsel also complained that the Commission has used unnecessarily intemperate language for the petitioner at certain places. In our opinion, this grievance also is to some extent justified. In paragraph 54 the Commission observed that "the petitioner was a hype-sensitive high-strung and vain person and that she greatly magnified the innocuous Holi revelry into an act of rampage by Uttam Khatik and his friends, and that this was done with an ulterior and malafide motive," I fail to understand the necessity or propriety of using these strong words in the report by the Commission. The Commission has failed to state as to what was the ulterior and malafide motive which the petitioner had against the students. The fact remains that certain students led by Uttam Khatik entered the girls' hostel compound on the Holi day and they were singing Holi Songs in which the name of the petitioner, if not that of the girls, was referred to. The petitioner apprehended that the Holi revelry may not cross the limits of propriety and take an ugly turn resulting in molestation of the girls. This apprehension, as found by the Commission, and I must assume that the finding of the Commission is correct on this point, .vas not justified. The petitioner with a view to deter the students in their conduct got pasted the notice which I have earlier extracted. The language used by petitioner in that notice was un-becoming and her conduct in that respect cannot be supported. But there cannot be any doubt that the petitioner acted in her capacity as Warden honestly for the safety of the girls in the hostel and not from any ulterior and malafide motive. I am, therefore, constrained to observe that the aforesaid remarks made by the Commission in paragraph 54 of its report were unjustified. 9. On the question of resignation, the learned counsel for the petitioner first contended that the petitioner was entitled to withdraw her resignation before the report of the Vice-Chancellor accepting the resignation was approved by the Executive Council. I am, therefore, constrained to observe that the aforesaid remarks made by the Commission in paragraph 54 of its report were unjustified. 9. On the question of resignation, the learned counsel for the petitioner first contended that the petitioner was entitled to withdraw her resignation before the report of the Vice-Chancellor accepting the resignation was approved by the Executive Council. According to him, the acceptance of resignation was complete after the report was approved by the Council and till then it was open to the petitioner to withdraw the resignation. In our opinion, there is no substance in this contention. The acceptance of the resignation was complete when the Chancellor accepted the resignation and there was no room for withdrawal of the resignation thereafter, it is true that the Executive Council can disapprove the action of the Vice-Chancellor, but that is altogether a different matter. The petitioner cannot set at naught the act of acceptance of the resignation by the Vice-Chancellor by withdrawing her resignation without the intervention of the Executive Council. 10. Learned counsel for the petitioner then contended that the petitioner submitted her resignation on 22nd March 1973 under duress. It was also submitted that the resignation was not a resignation at all because it was addressed to none. It was further argued that there was no emergency and the Vice-Chancellor bad no jurisdiction to accept the resignation acting under his emergency powers. It was also contended that the Executive Council did not apply its mind to the report of the Vice-Chancellor in the matter of resignation, and that the resolution of the Executive Council dated 16th October 1974 deserves to be quashed. As for the reasons given below I am accepting the challenge to the resolution of the Executive Council dated 16th October 1974, I do not think it proper at this stage to consider other points relating to the resignation raised here by the petitioner, because those points can be reconsidered by the Executive Council. 11. The petitioner's resignation was accepted by the Vice-Chancellor acting under section 14(4) of the University of Saugar Act, 1946. This provision reads as follows : "14(4). 11. The petitioner's resignation was accepted by the Vice-Chancellor acting under section 14(4) of the University of Saugar Act, 1946. This provision reads as follows : "14(4). The Vice-Chancellor may, in any emergency which in his opinion requires that immediate action should be taken, take such action as he deems necessary, and shall at the earliest opportunity report his action to the authority which in the ordinary course would have dealt with the matter." On 5th May 1973 the University of Saugar Act was repealed and replaced by the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973. The emergency powers of the Vice-Chancellor, now called 'Kulpati', are contained in section 15 of the Adhiniyam the relevant provisions of which read as follows : "15(4). If in the opinion of the Kulpati any emergency has arisen which requires immediate action to be taken, the Kulpati shall take such action as he deems necessary and shall at the earliest opportunity thereafter report his action to such officer, authority, committee or other body as would have in the ordinary course dealt with the matter : Provided that the action taken by the Kulpati shall not commit the University to any recurring expenditure for a period of more than three months: Provided further that where any such action taken by the Kulpati affects any person in the service of the University such person shall be entitled to prefer, within thirty days from the date on which such action is communicated to him, an appeal to the Executive Council. (5) On receipt of a report under sub-section (4) if the authority, committee or body concerned does not approve of the action taken by, the Kulpati, it shall refer the matter to the Kuladhipati whose decision thereon shall be final. (6) The action taken by the Kulpati under sub-section (4) shall be deemed to be the action taken by the appropriate authority until it is set aside by the Kuladhipati on a reference made under sub-section (5) or is set aside by the Executive Council on an appeal under the second proviso to sub-section (4)." 12. Both under the University of Saugar Act as also under the Adhiniyam the power to appoint officers and teachers of the University and to exercise all powers of the University not otherwise provided for is vested in the Executive Council. Both under the University of Saugar Act as also under the Adhiniyam the power to appoint officers and teachers of the University and to exercise all powers of the University not otherwise provided for is vested in the Executive Council. The power to accept resignation of an employee of the University is not specifically conferred on any authority & therefore, it is a power which in the normal course has to be exercised by the Executive Council. Under the University of Saugar Act, in case of an emergency, the Vice Chancellor could take action on behalf of any authority of the University, but he was bound to report under section 14(4) the action taken by him to the authority competent to take that action in the ordinary course. It was implicit in that provision that on a report made by the Vice-Chancellor of the action taken by him in an emergency it would be open to the authority concerned either to approve that action or to set it aside. Therefore, on the report of the Vice Chancellor regarding his acceptance of the resignation of the petitioner it would have been open to the Executive Council to approve or to set aside that action had the University of Saugar Act continued at the time when the report was considered by the Executive Council. The University of Saugar Act was, however, repealed by the Adhiniyam before the report could be considered. Under section 2(v) of the Adhiniyam all 'things done' under the repealed Act & 'in force' immediately before the date of repeal are deemed to have been done under the Adhiniyam. The Vice-Chancellor's act of acceptance of petitioner's resignation and the report made by him were things done under the repealed Act and were in force or effective before the date of repeal. Therefore, as a result of the fiction enacted in section 2(v) these acts of the Vice-Chancellor must be deemed to have been done under the corresponding provisions of the Adhiniyam i.e., under section 15(4). Further action on the report of the Vice-Chancellor had therefore, to be taken under the Adhiniyam and not under the repealed Act. Under the Adhiniyam if action taken by the Vice-Chancellor in an emergency affects any person in the service of the University, such person has a right of appeal to the Executive Council under the second proviso to section 15(4). Under the Adhiniyam if action taken by the Vice-Chancellor in an emergency affects any person in the service of the University, such person has a right of appeal to the Executive Council under the second proviso to section 15(4). The Executive Council under section 15(6) can accept the appeal and set aside the action of the Vice-Chancellor, I however, do not find that any appeal, as is contemplated under the second proviso to section 15(4), was filed or could be filed because the period of limitation is thirty days which expired long before the Adhiniyam came into force. The Executive Council, however, was also the authority to which the report was to be submitted. The Executive Council, therefore, could consider the report of the Vice Chancellor under section 15(5), but under that provision it had no authority to set aside the action of the Vice-Chancellor and in case of its disapproval it could only refer the matter to the Chancellor for setting it aside. 13. The report of the Vice-Chancellor accepting the resignation of the petitioner first came up before the Executive Council in its meeting held on 10th June 1973. As by that time the Adhiniyam had come into force, the Council decided to obtain the opinion of the Chancellor whether further action should be taken under the Adhiniyam or under the repealed Act. The Chancellor presumably decided that further proceedings be taken under the Adhiniyam. The petitioner's case then again came up before the Executive Council in its meeting held on 23rd March 1974 and it was resolved that "the consideration of the matter be deferred till the report of the Commission appointed regarding the matter was out and a decision has been taken on it by the State Government." Thereafter, in the meeting held on 16th October 1974 the Executive Council considered the petitioner's case as also the report of the Commission vide items Nos. 36 and 37 of the Agenda. The Executive Council in that meeting passed the resolution, which we have earlier extracted; rejecting the petitioner's representation. 14. From the facts stated above, it is clear that the Executive Council had not taken any decision before 16th October 1974 on the question of the petitioner's resignation and the action of the Vice-Chancellor accepting her resignation, and the matter had only been postponed awaiting the report of the Commission. 14. From the facts stated above, it is clear that the Executive Council had not taken any decision before 16th October 1974 on the question of the petitioner's resignation and the action of the Vice-Chancellor accepting her resignation, and the matter had only been postponed awaiting the report of the Commission. It is, therefore, difficult to understand the resolution of the Executive Council of 16th October 1974 which states that "the matter has already been decided, reported and noted." There being no prior decision of the Executive Council, the resolution proceeds upon a complete misapprehension. The Executive Council thus failed to apply its mind to the report of the Vice-Chancellor accepting the resignation and the representation of the petitioner was rejected under a complete misunderstanding that the matter had already been decided. Under section 15(5) of the Adhiniyam the authority, which in this case was the Executive Council, to which report is made by the Vice-Chancellor of an action taken in an emergency has either to approve the same or, in case of disapproval, has to refer the matter to the Chancellor. There was thus a statutory duty cast upon the Executive Council to apply its mind to see whether the action of the Vice-Chancellor taken under the emergency merited approval or disapproval. The Executive Council in the instant case failed to do this statutory duty of applying its mind under section 15(5) of the Adhiniyam. 15. From the resolution passed by the Executive Council on 23rd March 1974 it appears that the Council thought it proper to await the report of the Commission. In the meeting of 16th October 1974 the Commission's report was before the Council. It appears, though it is not clearly stated, that the Commission's report was taken into account in rejecting the petitioner's representation. I have earlier stated that the report of the Commission in so far as it found that the petitioner's resignation was voluntary was in excess of jurisdiction. The Executive Council, therefore, should not have been influenced by this finding. It was for the Executive Council to consider the facts and circumstances of the case, the report of the Vice-Chancellor and the representation of the petitioner and then to reach its conclusion whether the action of the Vice-Chancellor should be approved or whether a report be made to the Chancellor. It was for the Executive Council to consider the facts and circumstances of the case, the report of the Vice-Chancellor and the representation of the petitioner and then to reach its conclusion whether the action of the Vice-Chancellor should be approved or whether a report be made to the Chancellor. Consideration by the Executive Council of a report which was in excess of authority on the question in issue before the Council also makes the resolution dated 16th October 1974 invalid. 16. The learned Government Advocate contended that as the Commission's report is not binding on anyone by its own force, the Court should not quash any part of it under Article 226. It is true that the Commission's report by itself has no effect. But when it is found that the Commission has exceeded its jurisdiction in reporting upon an issue which was not referred to it and when it is further found that the Commission's finding is causing prejudice to the petitioner, we find no principle or authority that the report to that extent cannot be quashed. In the instant case, the Commission's report on the issue of the petitioner's resignation was taken into account by the Executive Council to her prejudice. The petitioner has also stated in the petition that although subsequently she was selected by the Public Service Commission for the post of principal of Women Polytechnic, she was not appointed by the State Government, presumably having regard to the adverse report of the Commission against her. The petitioner has further stated that she appeared in an interview for appointment as Principal in a private college of Pharmacy of Bombay and she was assured at the time of interview that she would be given the post, but later on she was not given that appointment. The petitioner's suggestion is that the report of the Commission has been coming in her way in getting another job. In these circumstances, it cannot be said that it would not be proper to pass the report of the Commission even to the extent it is in excess of jurisdiction. I may add that I have read the note of Raina, J. and I agree with his observations. 17. The petition is partly allowed. The report of the Commission to the extent it gives an implied finding in para 55 that the petitioner's resignation was voluntary is quashed. I may add that I have read the note of Raina, J. and I agree with his observations. 17. The petition is partly allowed. The report of the Commission to the extent it gives an implied finding in para 55 that the petitioner's resignation was voluntary is quashed. The resolution of the Executive Council dated 16th October 1974 is also quashed. The Executive Council is directed to consider the report of the Vice-Chancellor relating to the resignation of the petitioner as also the representation of the petitioner in that behalf under section 15(5) of the Adhiniyam. There shall be no order as to costs of this petition. The amount of the security deposit shall be refunded to the petitioner. OPINION Raina, J.- 18. I agree but would like to add a few words. 19. The observations made by the Commission in paragraph 54 of its report, to which reference has been made by my learned brother in para 8, are not only lacking in propriety but have done immense harm to the petitioner as would appear, from the facts stated in paragraph 16. The petitioner, no doubt, committed an act of gross indiscretion in pasting the notice "Visitors and Friends" on the gate of the Hostel which must have outraged the feelings of the students and enraged them; but her conduct must be judged in the context of her responsibility as the warden of the girls Hostel, keeping in view the fact that it was the day of 'Holi' and students had entered the compound of the Hostel in a hilarious mood to celebrate the festival. Even sober people sometimes behave queerly in a mood of revelry while celebrating 'Holi' and, therefore, we cannot blame the petitioner if she entertained an apprehension that the situation may be out of control if some of the girls happened to join the boys in a festive mood without realising the consequences. The petitioner may have over-reacted to the situation; but there can be no doubt that whatever she did was done by her in the interests of the girl students in her charge as the warden of the Hostel. There is, therefore, no justification for imputing an ulterior or mala-fide motive to her. 20. The petitioner may have over-reacted to the situation; but there can be no doubt that whatever she did was done by her in the interests of the girl students in her charge as the warden of the Hostel. There is, therefore, no justification for imputing an ulterior or mala-fide motive to her. 20. One of the grievances made by the petitioner in this petition regarding the enquiry before the Commission is that since the principal witnesses were the girl students of the Hostel and the proceedings were not held in camera, they dared not to speak against the students who flocked to attend the proceeding of the Commission. This grievance cannot be considered to be without substance, particularly because the open enquiry was held during pre emergency days. In any case, whatever may be said about the petitioner regarding her conduct as a warden, there is absolutely nothing against her conduct as a teacher; and we fail to see why the observations or the findings of the Commission should come in the way of the petitioner for securing a good job in the Education Department for which she may be considered fit by the Public Service Commission or by any Selection Committee with due regard to her academic qualifications She may have exhibited lack of tact in handling the delicate situation on the day of the occurrence; but there is absolutely no justification for drawing an adverse inference from her conduct about her capacity and ability as a teacher.