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1992 DIGILAW 984 (ALL)

Committee of Management, Sahid Sansmaran Inter College v. Deputy Director of Education

1992-07-31

S.P.SRIVASTAVA

body1992
ORDER S.P. Srivastava, J. - Shahid Sansmaran Inter College, Sherpur Ghazipur is an educational institution which imparts education up to the standard of Intermediate classes and is recognised under the provisions of the U.P. Intermediate Education Act and the Regulations framed thereunder. This institution has been brought within the purview of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 and the liability for the payment of salaries of teachers and employees of this institution stands cast upon the State Government as envisaged under S. 10 of the aforesaid Act. 2. It appears that the Regional Deputy Director Vth Region, Varanasi issued a notice requiring the petitioner to submit within 15 days of the receipt of the notice a para wise report in respect of the alleged irregularities mentioned in the notice, to the District Inspector of Schools; a copy of which was also required to be sent directly to the Regional Deputy Director Vth Region, Varanasi and further requiring the petitioners to show cause as to why on account of the violations of the provisions contained in the U.P. Act No.24 of 1971 an authorised controller be not appointed. 3. It further appears that after the receipt of the aforesaid notice the petitioner submitted a detailed para-wise report dated 9-5-92 denying the allegations made against it in the notice referred to above and asserting that no such default had been committed by the petitioner in complying with the provisions contained in the U.P. Act No. 24 of 1971 which could justify the supersession of the Committee of Management by appointing an authorised controller. It further appears that on the receipt of the reply submitted by the petitioner, the District Inspector of Schools submitted a report dated 31-5-92; a true copy of which has been filed as Annexure CA-6 to the counter-affidavit filed by Gupteshwar Rai who had been afforded an opportunity of being heard in opposition to the writ petition and is on record. 4. 4. Under the impugned order dated 25-6-92 the Regional Deputy Director of Education, Vth Region Varanasi, the respondent No. 1 purporting to act upon the report of the District Inspector of Schools and his recommendations, recorded a conclusion about his satisfaction that the management had failed to comply with the provisions contained in Sections 3(1), 3(2), 5(2), 5(3) and the directions issued under S. 4(I) of U.P. Act No. 24/ 1971 and in view of this satisfaction he appointed an authorised controller superseding the Committee of Management for a period of one year. 5. Feeling aggrieved by the aforesaid order passed by the respondent No. I superseding the Committee of Management in exercise of the jurisdiction envisaged under S. 6(3) of the U.P. High Schools and Inter, mediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, the petitioner has approached this Court for redress seeking the quashing thereof. 6. I have heard learned counsel for the petitioner and the learned Standing Counsel at some length. I have also heard Sri T. P. Singh, learned counsel representing the persons who had been granted opportunity of being heard in opposition to the writ petition in accordance with the provisions contained in Chapter XXII Rule 5-A of the Rules of the Court. 7. The learned counsel for the petitioner has urged that it was incumbent upon the respondent No. I while superseding the Committee of Management in the exercise of jurisdiction envisaged under S. 6(3) of the U.P. Act No. 24 of 1971 to record reasons in support of his conclusion and since in the impugned order only conclusion has been recorded without any reasons it stands vitiated in law and cannot be sustained. It has further been contended that absence of giving reasons really amounts to violation of the principles of natural justice and in the circumstances of the case, especially when, a detailed reply had been submitted by the petitioners denying the charges levelled against it, it was incumbent upon the respondent No. 1 to indicate as to on what basis the explanation submitted by the petitioner was not being accepted. It has further been contended that, in any case, if the respondent No. 1 had chosen to rely upon the report of the District Inspector of Schools which had been submitted by him in respect of the reply furnished by the petitioner, it was incumbent upon the respondent No. 1 to at least bring to the notice of the petitioner the contents of the said report so that the petitioner could have an opportunity to satisfy the respondent No. 1 about the incorrectness of the report which had been relied upon and utilised against the petitioner while passing the impugned order. It has further been urged that in fact the allegations made against the petitioner were totally misconceived and were really based on non-existent material. It has been contended that in the aforesaid circumstances the petitioner had not been afforded a reasonable opportunity of being heard and the impugned order has been passed in utter disregard of the elementary principles of natural justice. 8. The learned Standing Counsel has, on the other hand, supported the impugned order asserting that S. 6(3) of the U.P. Act No. 24 of 1971 does not contain any express provision requiring the Regional Deputy Director of Education to record reasons in an order superseding a management, and therefore, the impugned order cannot be said to be vitiated in law on account of no n-recording of the reasons, more so when it has been clearly mentioned in the order that the respondent No. 1 had taken into consideration the report submitted by the District Inspector of Schools. It has further been asserted that non-recording of reasons cannot be deemed to result in violation of the principles of natural, justice. The learned standing counsel has urged that the petitioner was not entitled to a copy of the report submitted by the District' Inspector of Schools referred to in the impugned order and there does not exist any such requirement under the law which could necessitate the supplying of the aforesaid copy to the petitioner before taking the impugned decision. The learned standing counsel has urged that the petitioner was not entitled to a copy of the report submitted by the District' Inspector of Schools referred to in the impugned order and there does not exist any such requirement under the law which could necessitate the supplying of the aforesaid copy to the petitioner before taking the impugned decision. It has further been asserted that a statutory right of appeal against an order superseding a Committee of Management under the provisions of U. P. Act No. 24 of 1971 stands provided under S. 7 thereof and in the presence of this equally, speedy and efficacious remedy no ground for interference by this Court is made out as the petitioner has approached this Court without availing the remedy indicated above. 9. Sri T. P. Singh, learned counsel who has appeared on behalf of the persons who were allowed opportunity of hearing in opposition to the writ petition has also made similar submissions as referred to above and has further asserted that the impugned action was fully justified in view of the persistent defaults committed by the petitioner Management and their persistent failure to comply with the mandatory requirements envisaged under the provisions of U.P. Act No. 24 of 1971 to which a reference has been made in the notice issued under S. 6(2) of the said Act especially when the fact that the defaults still continued was apparent from a perusal of the report submitted by the District Inspector of Schools, a true copy of which has been filed as Annexure CA-6 to the counter affidavit filed on behalf of these persons. 10. The question which, therefore, arises for consideration is as to the effect of the omission on the part of the respondent No. 1 to record reasons in the order passed by him under challenge and further, whether the impugned order stands vitiated on account of its having been passed in disregard of the principles of natural justice. Apart from the above questions another question which arises for consideration is as to whether the present one is a fit case for interference or the petition should be dismissed on the ground of the availability of the alternative remedy. 11. Apart from the above questions another question which arises for consideration is as to whether the present one is a fit case for interference or the petition should be dismissed on the ground of the availability of the alternative remedy. 11. This Courtin its decision in the case of Committee of Management, Shiv Charan Inter College Bulandshahr and another v. State of U. P. (C.M. writ petition No. 14889 of 1991 decided on 4.6.1992) has observed that the matter of supersession of a Committee of Management of an educational institution run by a Society is a matter of considerable importance as it divests the society of the right to manage the institution established by it and to that extent interferes with institutional rights. It was also observed that it also involves temporary or partial deprivation of the right to hold property and the society concerned stands deprived of the possession of the property belonging to it. As a result of the appointment of the authorised controller in exercise of the jurisdiction envisaged under section 6(3) of the U.P. Act No.24/71, the management stands deprived of all the powers to perform the functions of the management including the management of the property belonging to or vested in the institution and thus such an order is of a far reaching consequence. 12. While considering on merit the sub-missions made by the learned counsel for the petitioner it will be necessary to have in mind the aforesaid aspects which cannot be lost sight of. 13. A perusal of the scheme of U.P. Act No. 24/71 shows that all the provisions contained in the said Act have been designed with the object of achieving the purpose of regulating the payment of salaries to teachers and other employees of High Schools and Inter mediate Colleges receiving aid out of the State funds and to provide for matters connected therewith. The term "salary" of teacher or employee has been defined in S. 2(g) of the' Act. Section 3 of the Act provides for the payment of salary within time and without unauthorised deductions to the employees of the institution as defined under S. 2(f) of the Act. The term "salary" of teacher or employee has been defined in S. 2(g) of the' Act. Section 3 of the Act provides for the payment of salary within time and without unauthorised deductions to the employees of the institution as defined under S. 2(f) of the Act. S. 4 of the Act authorises the Inspector to give to the management any direction for the observance of such canons of financial propriety including any direction for retrenchment of any teacher or employee or for prohibition or any wasteful expenditure as he thinks fit. S. 5 of the Act provides for the procedure for payment of salary to the employees of the institution. 14. The Regional Deputy Director of Education stands vested with the jurisdiction to supersede a Committee of Management and appoint an authorised controller to take over the management of the Institution for the period prescribed if on receipt of recommendations from the Inspector, he is satisfied that the Management has committed default in complying with any direction given under S. 4 or with any provision of S. 3 or S. 5 of the Act. The aforesaid jurisdiction stands expressly vested in Regional Deputy Director of Education under the provisions contained in section 6 of the U.P..Act No. 24/71. 15. If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. 16. The provisions contained in the Act in question as seen above are aimed to secure the payment of salary as contemplated under S. 2(g) to the employees of the Institution as contemplated under S. 2(f) of the Act and for ensuring that the management of an institution receiving financial aid out of the State funds does not incur any wasteful expenditure. 17. In the present case a perusal of the notice dated 21-4-92 indicates that the charges levelled against the petitioner include nonpayment of various amounts of money which could not fall within the ambit of the term "salary" as defined under the provisions of U.P. Act No. 24/71, such as provident fund, cost awarded in suit, non-payment of interest, inaction to take proceedings for award of section grade to several teachers or promotion grade to the teachers etc. 18. 18. The counsel for the petitioner has tried to assail the impugned order on the ground that it is based on material which is really non-existent or in any case on such grounds which are not available for exercising the jurisdiction envisaged under S. 6(3) of the Act. In the circumstances of the case it involves an investigation into facts which cannot be done appropriately in the present proceedings. 19. However, the submissions made by the learned counsel for the petitioner that the impugned order stands vitiated on account of absence of reasons and on account of violation of the principles of natural justice appears to have some force. 20. In its decision in the case of Union of India v. M.L. Capoor and others, reported in AIR 1974 SC page 87 : 1974 Lab IC 338 the Hon'ble Supreme Court has observed thus (at page 98 of AIR):- "........Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable......" 21. Disclosure or recording of reasons guarantees consideration and introduce clarity excluding or minimising arbitrariness. An order which does not disclose the points which were considered and the reasons for rejecting them was not approved of by the Hon'ble Supreme Court in several cases, emphasising the necessity to give sufficient reasons which disclosed proper appreciation of the problem to be solved and the mental process by which the conclusion is reached. 22. In its decision in the case of S.N. Mukherjee v. Union of India, reported in AIR 1990 SC 1984 : 1990 Cri LJ 2148, the apex court again emphasised that even an administrative action must be supported by, reasons. 22. In its decision in the case of S.N. Mukherjee v. Union of India, reported in AIR 1990 SC 1984 : 1990 Cri LJ 2148, the apex court again emphasised that even an administrative action must be supported by, reasons. In the above case while holding that the rule requiring reasons to be given in support of an order was, like the principle of audi alteram partem, a basic principle of natural justice, the apex court observed as follows (at page 1996; of AIR) : ".....Keeping in view the expanding horizon of the principles of natural justice,we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities........" 23. It stands well settled that the rules of natural justice can operate only in areas not covered by any law validly made. It is further well settled that those rules of natural justice do not supplant the law but only supplement it. Obviously, therefore, it is only if a statutory provision either specifically or by necessary implication excludes the application of any rule of natural justice that the court cannot read into the concerned provision, the Principle of natural justice. 24. In the present case a perusal of the Scheme of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees). Act, 1971 (U. P. Act No. 24/ 71) and the provisions contained therein do not provide for either specifically or by necessary implication the exclusion of the application of the rules of natural justice. The absence of reasons in support of the conclusion reached by the (respondent No. 1 in the impugned order is, therefore, fatal. 25. One of the first principles of natural 'Justice is that you mint not permit one side to use means of influencing a decision which means are not known to the other side. What opportunity is adequate and fair must, in a given case, depend on the very nature of things and a variety of circumstances. The court's conscience must be satisfied that the person against whom an action is proposed had a fair access of convincing the authority proposing to take action that the grounds on which the action is proposed are non-existent. The court's conscience must be satisfied that the person against whom an action is proposed had a fair access of convincing the authority proposing to take action that the grounds on which the action is proposed are non-existent. The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. However, adequate opportunity must be afforded to the person who may be adversely affected by the decision and he should not be left in the dark as to the risk of the finding being made against him depriving him of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it could not be predicated that it would inevitably have had that result. This view is amply supported by the decision of the Privy Council in the case of Mahon v. Air New Zealand Ltd., reported in (1984) 3 All ER 201. There is nothing rigid or mechanical about the term "rules of natural justice." For ensuring the observance of the principles of natural justice such procedure has to be applied which is right and just and fair inasmuch as natural justice, it has been said is only "fair play in action." 26. In the present case it is apparent that he respondent No. 1 while passing the impugned order has relied upon the report submitted by the District Inspector of Schools. It has been asserted that copy of this report was never supplied to the petitioner and he was never afforded any opportunity to place any material or evidence before the respondent No. I to demonstrate that the report as not acceptable and deserved to be rejected. The report in the present case definitely constituted a material on which the respondent No. I had ultimately acted. In the circumstances, therefore, principles of natural justice demanded that the report ought to have been brought to the notice of die petitioners and fairness required that the respondent No. I arrived at his own conclusions after examining the report along with the representation of the petitioner against the same. In the circumstances, therefore, principles of natural justice demanded that the report ought to have been brought to the notice of die petitioners and fairness required that the respondent No. I arrived at his own conclusions after examining the report along with the representation of the petitioner against the same. In the circumstances, I am clearly of the, view that the petitioner was entitled to have a copy of the report in question and the non-supply of this report has to be held to be fatal to the impugned proceedings. 27. So far as the question of availability of alternative remedy is concerned, the counsel for the petitioner has urged that this cannot come in the way of granting relief by this Court. Reliance has been placed in this connection on the decision of Hon'ble Supreme Court in the case of M/s. Baburam Prakash Chandra Maheswari v. Antarim Zila Parishad, reported in AIR 1969 SC 556 : 1969 All LJ 596 wherein it has been observed as follows (at page 599 of All LJ) :- "......But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self-imposed limitation a rule of policy, and discretion rather than a rule of law and the Court may, therefore, in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted....." It was further observed as below :- "........There are at least two well recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. The doctrine has no application in a case where the impugned order had been made in violation of the principles of natural justice....." 28. In view of what has been stated herein before there is no escape from the conclusion that the present one is a case which falls within the ambit of the exception to which a reference has been made above. Further, if the petitioner is relegated to the alternative remedy the matter would get unnecessarily delayed. Moreover it is also necessary to clarify the legal position in regard to the exercise of the jurisdiction envisaged under S. 6(3) of U.P. Act No. 24/71. The public interest, therefore, requires that the law should be settled by this Court at the earliest. Further, if the petitioner is relegated to the alternative remedy the matter would get unnecessarily delayed. Moreover it is also necessary to clarify the legal position in regard to the exercise of the jurisdiction envisaged under S. 6(3) of U.P. Act No. 24/71. The public interest, therefore, requires that the law should be settled by this Court at the earliest. It would not, therefore, be in the interest of justice to dismiss the petition on the ground that the petitioner has an alternative remedy. 29. In the result, the writ petition succeeds in part. The impugned order dated 25-6-92 (Annexure 7 to the writ petition) is quashed and a mandamus is issued requiring the respondent No. 1 to take a fresh decision in accordance with the law in the light of the observations made herein above. 30. There shall be no order as to costs.