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Allahabad High Court · body

1990 DIGILAW 388 (ALL)

Ramesh Chandra Mishra v. U. P. Secondary Education Services Commission

1990-04-11

G.K.MATHUR, S.D.AGARWALA

body1990
JUDGMENT S.D. Agarwala and G.K. Mathur, JJ. - This is a petition under Article 226 of the Constitution of India. Counter-affidavits and rejoinder-affidavits have been exchanged. The parties had agreed that the petition itself may be disposed of at this stage 2. The petitioner, Raraesh Chandra Misra, is Principal of Basant Theosophical Uchatar Madhyamib Vidyalaya, Kamachha, Varanasi, hereinafter referred to as 'School'. 3. The petitioner was appointed as Principal of the school on 5th July, 1977. He was thereafter confirmed on the said post. The school is a recognised Higher Secondary School and is on the grants-in-aid list of the State Government. 4. On the basis of certain reports made by the audit and certain complaints received by the Management in regard to the admission of the students, the petitioner was suspended by the Management pending enquiry by an order dated 28th April, 1987. This order of suspension was revoked by the District Inspector of Schools by his order dated 18th June, 1987. The Management again passed second suspension order against the petitioner on 1st July, 1987. This suspension order was not approved by the District Inspector of Schools and it lapsed automatically. 5. The charges were levelled against the petitioner for gross misappropriation of funds of the School and financial irregularities, gross insubordination, gross negligence of duties and gross misconduct. The case of the respondent, School is that the Management Committee appointed a sub-committee comprising of Sri D. K. Bhattacharya, former Chief Secretary, U. P. Government and former Chairman, U. P. Public Services Commission and Uma Kant, retired Chief Engineer, U. P" Public Works Department to enquire into the said charges, The sub-committee submitted bis report on 15th December, 1987. This report was an ex pane report as the case of the School is that the petitioner did not accept the charge sheet. This report which was submitted by sub-committee was considered by the Committee of Management in its meeting held on 7th April 1988. It was decided by the Management Committee that the petitioner's services be terminated. This proposal of the Management Committee was sent to the U. P. Secondary Education Service Commission U. P. Allahabad for its approval. The Commission accorded its approval on 17th February, 1990 which was communicated to the petitioner by the Commission's letter dated 19th February, 1990. It was decided by the Management Committee that the petitioner's services be terminated. This proposal of the Management Committee was sent to the U. P. Secondary Education Service Commission U. P. Allahabad for its approval. The Commission accorded its approval on 17th February, 1990 which was communicated to the petitioner by the Commission's letter dated 19th February, 1990. The petitioner consequently has filed the present petition challenging the order of the Commission dated 17s.li February, 1990 which has been communicated to him by its letter dated 19th February, 1990 and has also sought direction in the nature of mandamus commanding the respondents not to interfere with the working of the petitioner as principal of the school. 6. Learned Counsel for the petitioner Dr. R. G. Padia hat raised two main submissions. His first submission is that the sub-committee appointed by the Managing Committee to enquire into the charges framed against the petitioner was wholly illegal and consequently any report submitted by the sub-committee could not be relied upon to establish the charges against the petitioner. The case of the petitioner is that the entire proceedings of the enquiry committee are without jurisdiction and consequently vitiated in law. The second submission of the petitioner is that order of the Commission dated 17th February, 1990 is illegal and void. As the commission has acted in gross violation of the principles of natural justice. 7. In so far as the first submission is concerned the case of the petitioner is that the sub-committee under the Regulations framed under the U. P. Intermediate Education Act could be constituted only by members of the Committee of Management. Outsiders who are not members of the Committee of Management could not have been members of a sub-committee. 8. In regard to the second submission the argument of the petitioner is that the Commission called the petitioner and the Management on different dates. Both the parties were heard separately. The petitioner, therefore, did not know what the case of the respondent Committee of Management was, neither he was told as to what case has been taken by the Committee of Management against the petitioner. His case is that hearing the petitioner and the Committee of Management on different dates violates the principles of natural justice. The petitioner, therefore, did not know what the case of the respondent Committee of Management was, neither he was told as to what case has been taken by the Committee of Management against the petitioner. His case is that hearing the petitioner and the Committee of Management on different dates violates the principles of natural justice. It has been further urged that submission of a report by one member of the Commission on 17th February, 1990 and approval by the Commission on that very day violated the Regulations framed by the Commission and consequently it is established that the Commission did not apply its mind before according approval. 9. It is not necessary for us to go into the second submissions made by the learned counsel for the petitioner as we are of the opinion that the first submission made by the learned counsel for the petitioner has been substantiated. 10. Since the enquiry itself, in our opinion, is illegal, the whole proceedings subsequent to the enquiry fall through and are liable to be quashed. Consequently we are considering the first submission made by the learned counsel for the petitioner only. 11. Section 16-G of the U. P. Intermediate Education Act, 1921 hereinafter referred to as the Education Act lays dawn conditions of service of Heads of Institutions, teachers and other employees of recognised institutions. Subsection (1) on this Section provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by the Regulations and any agreement between the Management and such employee is so far as it is inconsistent with the provisions of the Act or with the Regulations shall be void. In view of this sub-section (1), Regulations have been framed laying down conditions of services of Heads of Institutions, teacher and other employees. They are contained in Chapter III of the Regulations. In so far as Headmaster, Principal and teachers are concerned, Regulations 35, 36 and 37 provides for the procedure to be followed where complaint is received against any of the above mentioned persons. Regulation 35 provides for appointment of Enquiry Committee to go in to the charges. They are contained in Chapter III of the Regulations. In so far as Headmaster, Principal and teachers are concerned, Regulations 35, 36 and 37 provides for the procedure to be followed where complaint is received against any of the above mentioned persons. Regulation 35 provides for appointment of Enquiry Committee to go in to the charges. Regulation 36 lays down the manner in which any of the above persons are to be given an opportunity of hearing and Regulation 37 lays down procedure to be followed after the enquiry report of the enquiry committee is received and is placed before the committee c-1 Management. So far as the question for consideration before us is concerned, Regulation 35 is relevant and is quoted below : "On receipt of a complaint or an adverse report of fact of a serious nature, the Committee may in the cases of teachers appoint the Headmaster or Principal or Manager as the enquiry officer (or the Manager may himself set up the enquiry if such power has been delegated to him by the Committee under rules), and in the case of the Headmaster or Principal, a small sub-committee, with instructions to submit the report as expeditiously as possible." The above regulation clearly provides that on receipt of a complaint or an adverse report of fact of serious nature the Committee may in the the cases of teachers appoint Head master, Principal or Manager as the enquiry officer and in the case of Headmaster or Principal a sub-committee can be appointed with the instruction to submit report at the earliest. 12. Regulation 35 of the Act was amended by notification dated 10th March, 1975. Regulation 35 was thereafter made applicable to other employees also and it was further provided that so far as Class IV employees is concerned the Principal/Headmaster have been authorised to appoint a senior teacher as enquiry officer. 12. Regulation 35 of the Act was amended by notification dated 10th March, 1975. Regulation 35 was thereafter made applicable to other employees also and it was further provided that so far as Class IV employees is concerned the Principal/Headmaster have been authorised to appoint a senior teacher as enquiry officer. Regulation 35 now reads as follows : " 35- f'kdk;r vFkok xaEHkhj izd`fr ds vkjksiksa dh izfrdwy v[;k izkIr gksus ij lfefr] v/;kidksa ,oa vU; deZpkfj;ksa ds fo"k; esa iz/kkuk/;kid ( vFkok vkpk;Z vFkok izcU/k dks tkap vf/kdkjh fu;qDr djsxh] vFkok izcU/kd Lo;a tkap djsxk ;fn lfefr }kjk fu;eksa ds vUrxZr mls ;g vf/kdkj izfrfufgr gks x;s gSa) vkSj iz/kkuk/;kid vFkok vkpk;Z ds fo"k; esa ,d NksVh mi&lfefr gksxh ftls vk[;k ;Fkk'kh?kz izLrqr djus ds funsZ'k gksaxsA prqFkZ Js.kh ds deZpkfj;ksa ds lEcU/k esa iz/kkukpk;Z@iz/kkuk/;kfid }kjk fdlh ofj"B v/;kid dks tkap vf/kdkjh fu;qDr fd;k tk;sxkA " 13. In the year 1982 U. P. Secondary Education Services Commission and Selection Boards Act, 1982 (U. P. Act No. V of 1982) was promulgated by the Uttar Pradesh Legislature. This Act shall hereinafter be referred to as the 'Coir mission Act'. The object of this Act was to establish Secondary Education Services Commission and Selection Board for the selection of teachers in the institution recognised under the Education Act. Section 21 of the Act provides for restriction on dismissal removal or reduction in rank of teachers. Section 21 provides that no teacher specified in the schedule shall be dismissed or removed from service or reduced in rank and neither his emoluments may be reduced nor he may be given notice of removal from service by the Management unless prior approval of the Commission has been obtained. Section 21 came into force with effect from January 1, 1984 by notification issued by the State Government on 27th December, 1983. The resultant affect was that on or after 1st January 1984 if any action of dismissal, removal or reduction in rank of teacher, Head master or Principal is taken then such action can only be taken after obtaining prior approval of the Commission in accordance with the Scheme of the Education Act, Regulations framed thereunder and the Commission Act. The action for dismissal, removal of reduction in rank against a teacher, Headmaster or Principal can only be taken in the manner prescribed viz. The action for dismissal, removal of reduction in rank against a teacher, Headmaster or Principal can only be taken in the manner prescribed viz. Holding an enquiry under Regulation 35 and thereafter following the procedure as required in Regulations 36 and 37 and subsequent thereto taking prior approval of the Commission. If any of the steps which are condition precedent for taking action are not followed, the action in our opinion would be vitiated in law and would be void. Section 21(3) of the Commission Act also specifically provides that after the order of dismissal, removal or reduction in rank of removal from service or reduction in emoluments of a teacher in contravention of the provisions of sub-section (1) or sub-section (2) shall be void. 14. Dr. R. G. Padia, learned counsel for the petitioner has contended that in the case of an enquiry against a Headmaster or Principal t Sub-committee had to be appointed by the Management Committee. It is the said Sub-Committee which had to submit its report for consideration by the Committee of Management. His case is that such a sub-committee can be part of Management Committee along and cannot be constituted of these persons who are not members of the Management Committee. His consequential argument is that since the petitioner is Principal of the School, the charges levelled against the petitioner can only be enquired by the sub-committee consisting of the members of the Management Committee and not by the Committee constituted of persons other than members of the Management Committee. He has laid great stress on the expression 'Sub-Committee' which has been used in Regulation 35. At this stage it is necessary to consider the dictionary meaning of the word 'Sub-Committee' given in various dictionaries this word 'Sub-Committee' has not been defined either in the Act or in Regulations framed thereunder. It if settled law that when a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. 15. In 'The Rendum House Dictionary of the English Language' the word 'Sub-Committee' has been defined as follows ; "A Secondary Committee appointed out of a main Committee." 16. 15. In 'The Rendum House Dictionary of the English Language' the word 'Sub-Committee' has been defined as follows ; "A Secondary Committee appointed out of a main Committee." 16. In 'Webster's Third New International Dictionary' the word 'Sub-Committee has been defined as follows : "A committee forming a sub-division of a primary or standing committee from which its responsibility and authority derive and usually being charged with a specific or limited function." 17. In Chamber's Twentieth Century Dictionary Revised Edition the word sub-committee has been defined as under : "An Under-committee ; a division of a Committee." 18. In 'The New Oxford Encyclopedic Dictionary' the word 'Sub-committee lias been defined as under : "Committee formed from main committee for special purpose." 19. In 'The New Lexicon Webster's Dictionary of the English Language' it is defined as follows : "A small committee formed from a larger one, appointed usually to consider or deal with some particular aspect of the letter's work." 20. In 'The Compact Edition of The Oxford English Dictionary Volume II' the word sub-committee has been defined as follows ; "A committee formed from and acting under a main Committee a part of a Committee appointed for special purposes." 21. On a reading of the definitions quoted above it is clear that the subcommittee is always a part of a main Committee appointed for a special purpose. The sub-committee has to consist of the members of the larger Committee. The sub-committee is a part and parcel of the main Committee. In consequence thereof so far as the general meaning of the word sub-committee is concerned from this it can be culled out teat a 'Sub-Committee' which has to be constituted to enquire into the charges has to consist of the members of the larger body viz. Management Committee. It cannot consist of the persons who are not members of the Management Committee. 22. In the text book 'On the Law and Practice of Meetings' Servant Edition by Shackleton various kinds of Committees have been enumerated. There can be a general or executive committee, a standing committee, a special committee or wot king party, sub-committee and a joint committee. Distinction has been drawn in the above text book between general committee and the Subcommittee. On page 89 it has been stated as follows : "Sub-committees may be either standing or special, but are usually the latter. There can be a general or executive committee, a standing committee, a special committee or wot king party, sub-committee and a joint committee. Distinction has been drawn in the above text book between general committee and the Subcommittee. On page 89 it has been stated as follows : "Sub-committees may be either standing or special, but are usually the latter. They are appointed by a fully committee to deal with matters which may be more conveniently handled by a few persons, such as drawing up a report or interviewing a person, anti must report back to the full committee. In practice, a sub-committee often undertakes a great deal of research and detailed work on behalf of its main committee. The system is widely used in local Government practice. "A sub-committee derive its origin from the main committee and can only act within the powers conferred by that body. By such delegation the appointing committee, does not divest itself of its power but merely confers on the smaller body duties that it would otherwise perform itself." 23. From the above statement of law it it also clear that the sub-committees derived its origin from the main committee and can only act within the powers conferred by that body. By a delegation to the sub-committee the powers of the main committee are not divested but merely confers on a smaller body duties that it would otherwise perform itself. 24. ln view of the above we are clearly of the opinion that the use of the word 'sub-committee' in Regulation 35 is significant. The 'sub-committee' must be constituted of members of the Management Committee and not of persons who are not members of the Management Committee. 25. 24. ln view of the above we are clearly of the opinion that the use of the word 'sub-committee' in Regulation 35 is significant. The 'sub-committee' must be constituted of members of the Management Committee and not of persons who are not members of the Management Committee. 25. In the case of teachers, Headmaster and Principal and other employees of the institution, it does appear that the intention of the Legislature behind framing regulations was that in the case of an educational institution it would be just and proper that the enquiry be conducted by the persons who are connected with the management of the institution as they would be the best persons having knowledge of the various affairs of the institution and would consequently be able to judge as to whether the charges levelled against a teacher, Principal or Head master and other employees have really been established against the charged person if a committee is appointed to enquire into the charges which ire not connected with the institution then it would violate the spirit of Regulation 35. The intention is further fortified by the fact that in the Regulation 35 itself it has been mentioned that the Sub-committee shall submit his report as expeditiously as possible and Regulation 37 further provides that the report of the Committee thereafter would be considered by the main body viz. Committee of Management and the employees shall be allowed if he so desires in person to state his, case and answer any question that may be put to him by any member present at meeting. The entire procedure of framing of the charges, appointment of the enquiry committee, submitting a report, and ultimate consideration by the Management Committee is a matter of internal administration of the institution. It is only after following all those steps laid down by the Regulations that the Committee had to submit its proposal to the Commission for its approval. 26. In the instant case it s not disputed that the Committee which was appointed to enquire into the charges against the petitioner consists of persons who are not members of the Management Committee. In the circumstances, the enquiry committee was not constituted in accordance with the Regulations. The view take.t by the commission that the enquiry committee was properly constituted, in our opinion, is manifestly erroneous. 27. In the circumstances, the enquiry committee was not constituted in accordance with the Regulations. The view take.t by the commission that the enquiry committee was properly constituted, in our opinion, is manifestly erroneous. 27. Learned Counsel for the respondents have however, placed reliance on a Full Bench decision of this Court in Hindu National School Management Trust Society Dehradun and another v. Deputy Director of Education and others, 1980 UPLBEC 175 wherein it has been held that Regulation 35 is merely directory and not mandatory and consequently it has been urged that the Committee appointed of the persons who were not members of the Management Committee could have been appointed under Regulation 35. In this Full Bench decision validity of an action against a teacher of the college was being considered. Instead of appointing Headmaster, or Principal or Manager to enquire into the charges a sub-committee was appointed consisting of President, Vice-President and a member of the committee to enquire into the charges. After considering various provisions of the Education Act and the Regulations framed thereunder the Full Bench opined as follows : "The power to punish vests in the Committee. Regulation 35 enables it to delegate its power of enquiry to a named officer or to a subcommittee. Even in the case of teacher where the enquiry is to be conducted by a named officer it would substantially comply with the requirement of law if the power to conduct the enquiry is delegated to a sub-committee." In this case the only proposition laid down was that in the case of an enquiry against a teacher instead of appointing a named officer to enquire into the charges, if a sub-committee is appointed to enquire into the charges then it would substantially comply with the requirement of Regulation 35. It was not laid down in this case that the Management Committee if it proposed to get the charges enquired against the principal, or Headmaster of an institution the Managing Committee can appoint a sub-committee consisting of persons who are not members of the Management Committee. In the circumstances the decision of the Full Bench does not go against the view taken, by us. 28. In the circumstances the decision of the Full Bench does not go against the view taken, by us. 28. It is also well settled that if law requires something to be done in a particular manner it has to be done in that very manner or not at all, and that other methods of performance are necessarily forbidden. See Ramchandra v. Govinda, AIR 1975 SC 915 at page 918 ; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527 . Relying on this dictum the Full Bench held that provisions relating to the holding on an enquiry is mandatory. 29. The Full Bench decision in Hindu National School Management Trust Society Dehradun and another v. Deputy Director of Education and others (supra) was considered in a subsequent decision of this Court in Management Committee of M. M. Inter College Chandpur, District Bijnor v. Deputy Director of Education, 1984 UPLBEC 271. It was observed in this case of Hindu National School Management Trust Society and another v. Deputy Director of Education and others (supra) the only proposition laid down was that in view of Regulation 35 it is mandatory that an enquiry on basis of the charges framed is conducted in the case of a teacher t hough it is of no consequence whether it is done by a named officer or by a sub-committee. We respectfully agree with this interpretation. 30. The question here is as to whether a named officer can at all be appointed to enquire into the charges against a Principal. This may be possible in the case of a teacher but not in the case of a Principal. The first clause in Regulation 35 cannot possibly apply in the case of Principal. How can a Principal who is charged can enquire into his own charges. In these circumstances in the case of Principal there is no other option to the Managing Committee but to appoint a Sub-committee. 31. In Marathwada University v. Seshrao Balwant Rao Chavan, 1989 Volume II Judgments Today 276, in very recent decision of the Supreme Court it has been opined as follows : "It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury's Laws of English (Vol. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury's Laws of English (Vol. I 4th Ed. Para 32) summarises these principles as follows : "32. Sub-delegation powers. - In accordance with the maxim delegates non protest delegate, a statutory power must be exercised only by the body or officer in whom it has been confined, unless sub-delegation of the power is authorised by express words or necessary implication. There is a wrong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation, and the same may be said of any power to the exercise of which the designated body should address its own mind." 32. In our opinion the above principle also applies to the present case. There is mandate that charges against a Principal have to be enquired into. This can be done only by a 'Sub-committee' as there is no other alternative available to the Managing Committee to exercise its discretion as it could do in the case of a teacher. The power to enquire can only be delegated to a sub-committee viz. a Committee consisting of members of the Management Committee. We are consequently of the opinion that the submission of the learned counsel for the petitioner is well founded. The Sub-committee was not properly constituted and consequently action taken on the basis of an enquiry report by a Committee not constituted in accordance with law would, in our opinion, is vitiated in law. It is necessary in the interest of justice that the charges against the petitioner be enquired into by a Sub-committee appointed in accordance with law. Since the Commission has acted on the basis of the report of a Sub-committee which was not constituted in accordance with law, the approval given by the Commission to the resolution passed by the Management Committee, in our opinion, is also liable to be quashed. 33. The order dated 17th February, 1990, passed by the U. P. Secondary Education Service Commission, Allahabad as communicated by the Commission's letter dated 19th February, 1990 is hereby quashed. 34. It is, however, made clear that this order does not debar the management from initiating enquiry proceeding against the petitioner in accordance with law. 35. 33. The order dated 17th February, 1990, passed by the U. P. Secondary Education Service Commission, Allahabad as communicated by the Commission's letter dated 19th February, 1990 is hereby quashed. 34. It is, however, made clear that this order does not debar the management from initiating enquiry proceeding against the petitioner in accordance with law. 35. Learned counsel for the petitioner states that in case Managing Committee decides to appoint a Sub committee in accordance with law to enquire into the charges framed against the petitioner, then the petitioner will co-operate with the enquiry and shall appear before the Sub committee on a date fixed by the Subcommittee. 36. With the above observations and directions the petition is disposed of.