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2016 DIGILAW 2546 (ALL)

CHINTAMANI UPADHYAYA v. STATE OF U. P.

2016-07-22

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner is an officiating Principal of a recognized institution, namely, Shyam Krishna Inter College. He has instituted this writ proceedings for issuing a writ of certiorari to quash the order dated 20th August, 2015 passed by the second respondent, whereby petitioner’s representation has been rejected against the transfer of the sixth respondent and the order dated 24th August, 2015. 2. A brief reference to the factual aspects would suffice. 3. Shyam Krishna Inter College, Thawaipar, Gorakhpur (for short, the “Institution”) is a recognized intermediate college. It receives financial aid from the State Government. The provisions of U.P. Intermediate Education Act, 1921 (U.P. Act No. II of 1921), the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971), and the U.P. Secondary Education Services Selection Board Act, 1982 (U.P. Act No. 5 of 1982) are applicable to the Institution. 4. It is stated that a vacancy arose in the office of Principal of the Institution on 30th June, 2015. The petitioner being the senior most lecturer in the Institution was appointed as an officiating Principal. The District Inspector of Schools is stated to have approved his appointment. He is functioning as officiating Principal since 13th July, 2015. 5. The Committee of Management has sent a requisition to the U.P. Secondary Education Services Selection Board (the Board) for the selection of a permanent Principal. It appears that in the meantime the sixth respondent who was selected by the Board in the year 2010 as a Principal in Sri Ganga Bux Kannodia Gandhi Inter College, Kaptanganj, Kushinagar, who later transferred to Neta Subhash Krishi Sainik Inter College, Vinod Nagar, Maulaganj, Maharajganj, moved an application on 26th September, 2014 for his transfer to Shyam Krishna Inter College, Thawaipar, Gorakhpur. 6. It is stated that the application of the sixth respondent for his transfer to Shyam Krishna Inter College, Thawaipar, Gorakhpur (the Institution) was not considered in terms of Regulation-55 under Chapter-III of the Regulations framed under the U.P. Act No. II of 1921 and he was illegally transferred to the Institution where the Petitioner is working as Officiating Principal. The petitioner had preferred a writ petition (Writ-A No. 30598 of 2015, decided on 25.5.2015) prior to the sixth respondent’s application was considered. The petitioner had preferred a writ petition (Writ-A No. 30598 of 2015, decided on 25.5.2015) prior to the sixth respondent’s application was considered. This Court did not entertain his petition on the ground that it was a premature petition. His writ petition was dismissed as such, leaving it open to the petitioner to move this Court at appropriate stage. 7. It is stated that the petitioner submitted a representation dated 08th June, 2015 alongwith annexures and certified copy of the order of this Court dated 25th May, 2015. The second respondent fixed 16.7.2015 for hearing of the matter. However, prior to the said date the petitioner sent an application on 14.7.2015 requesting to fix some other date as his wife was not well. The second respondent fixed 27.7.2015 for hearing the matter and an information was sent to the petitioner vide letter dated 20.7.2015. The petitioner could not appear on 27.7.2015 on the ground that the letter intimating him the date 27.7.2015 was received by him on 27.7.2015 itself. The second respondent fixed 14.8.2015. On the said date the petitioner attended the office of the second respondent but no hearing took place and he was informed that the Director has gone to Lucknow. On the same day the petitioner submitted an application in his office, which was duly said to be received by the concerned clerk, demanding copies of the documents submitted by the sixth respondent. The said application is on the record as annexure-14 to the writ petition. When the petitioner came back to Gorakhpur, he was informed that the next date is fixed as 18.8.2015 i.e. only four days after the previous date. The petitioner got his reservation for Allahabad. In support of the said statement, he has brought on record railway reservation tickets from Gorakhpur to Allahabad and Allahabad to Gorakhpur, but the petitioner could not appear on the said date as he suddenly fell ill and got admitted in the hospital on 17.8.2015 and remained under medical treatment from 17.8.2015 to 19.8.2015. Thus, for the said reason he could not travel to Allahabad to attend the hearing. On 18.8.2015 the second respondent proceeded to hear the matter ex parte and passed the impugned order dated 20.8.2015. 8. Thus, for the said reason he could not travel to Allahabad to attend the hearing. On 18.8.2015 the second respondent proceeded to hear the matter ex parte and passed the impugned order dated 20.8.2015. 8. It is also stated that on 14th August, 2015 the petitioner had moved an application that copies of the documents submitted by the sixth respondent in the office of the second respondent, may be supplied to him also. 9. I have heard learned counsel for the petitioner Sri Rahul Jain, learned Standing Counsel, and Sri R.K. Ojha, learned Senior Advocate assisted by Sri R.C. Dwivedi, learned counsel for the sixth respondent. 10. It is contended on behalf of the petitioner that the impugned order has been passed in utter disregard to the principles of natural justice. It is stated that sixth respondent had fixed total four dates, the petitioner had attended his office on previous dates but on 20.8.2015 the second respondent in his absence passed the order impugned without hearing him. He further submitted that the papers submitted by the sixth respondent were not supplied to him. 11. The next submission of learned counsel for the petitioner is that the sixth respondent is on probation and in fact he was placed under suspension by the Management of Sri Ganga Bux Kannodia Gandhi Inter College, Kushinagar (for short, the ‘institution at Kushinagar’) on 02nd September, 2010. The suspension order was approved by the District Inspector of Schools (the DIOS) on 27th October, 2010. The said order was not challenged by the sixth respondent. He further submits that after the disciplinary proceedings the Committee of Management of the said institution found that the sixth respondent was guilty of misdemeanor. The charges in respect of financial misconduct stand proved. The Committee of Management of the said institution accepted the enquiry report and resolved to dismiss the sixth respondent. 12. It is further submitted that the resolution of the Committee of Management was forwarded by the DIOS on 28th April, 2011 to the Board. When the said proposal for approval of dismissal of the sixth respondent was pending consideration before the Board, an application was moved by the Committee of Management of the institution at Kushinagar to send back the papers with regard to dismissal of the sixth respondent on the ground that the Committee of Management has resolved to withdraw the departmental proceedings. 13. 13. The disciplinary committee of the Board vide resolution dated 27th November, 2012 has returned all the papers to the committee of management of the concerned institution. It is stated that after the disciplinary proceedings were withdrawn, the sixth respondent has been transferred to the present Institution. It has been further urged by the learned counsel for the petitioner that under the amended regulation a three-member committee was constituted to consider the matter of transfer. In the meeting, in which the committee has taken the decision, one of the members of the committee, namely, the Secretary of the Board was not present hence two members have taken decision with regard to transfer of the sixth respondent. 14. Learned Senior Advocate appearing for the sixth respondent Sri R.K.Ojha submits that the sixth respondent is a regular Principal, therefore, in terms of Regulation-55 of Chapter-III of the Regulations framed under the U.P. Act No. II of 1921 he can be transferred even if he is on probation. He further submits that the Committee constituted in terms of Regulation-55 of Chapter-III had considered the matter of the petitioner and out of three members, two members were present, therefore, the decision taken by the committee with regard to approval of transfer of the sixth respondent, was legal and there was no illegality, if a third member was not present in the meeting. 15. Lastly, Sri Ojha submits that even if there is a violation of principles of natural justice, the petitioner has been heard by this Court, therefore, now the said illegality stands cured. He also urged that the committee of management of the institution concerned is the appointing authority; therefore, it was well within its jurisdiction to withdraw the entire disciplinary proceedings. Accordingly the Committee of Management of the institution at Kushinagar made a request to the Board to return the papers. The Board has rightly acceded to the request of the Committee of Management of the said institution hence there is no illegality. 16. Learned Standing Counsel has adopted the submissions of Sri R.K. Ojha, learned Senior Advocate. 17. I have considered the rival submissions and perused the record. 18. It is a common ground that the petitioner is an officiating Principal. His appointment was approved by the DIOS. He had preferred a writ petition earlier when the transfer proceedings of the sixth respondent were pending. 17. I have considered the rival submissions and perused the record. 18. It is a common ground that the petitioner is an officiating Principal. His appointment was approved by the DIOS. He had preferred a writ petition earlier when the transfer proceedings of the sixth respondent were pending. His writ petition was disposed as pre-mature with liberty to approach this Court at appropriate stage. After dismissal of his writ petition, he moved a representation before the second respondent that he may be heard when the matter of the sixth respondent is considered for transfer. On the three dates, mentioned above, the hearing could not take place. On 14th August, 2015 when the petitioner attended the office of the second respondent he was informed that the officer concerned is out of station. He submitted an application on 14th August, 2015 which is on the record. In his application he made a prayer that the copy of the documents submitted by the sixth respondent be supplied to him. It has not been denied that the no order was passed on his application, neither document was supplied to him. 19. Indisputably, the office of the second respondent did not supply copy of the documents submitted by the sixth respondent in spite of the fact that on 14.8.2016 the petitioner has demanded the said documents by submitting an application on the said date. This Court in the case of Ramadhar Shastri Adarsh Shastri and another v. Deputy Director of Education, IV Region, Allahabad and others, 1987 UPLBEC 14, has considered the effect of non-supply of documents. The Court has observed that reversal of such a process results in grave error of procedure which vitiates the order. The Court held as under: “2. ...Filing of documents should have preceded the hearing. The Deputy Director in reversing the process committed grave error of procedure which vitiated his order.” 20. A similar view has been taken by a Division Bench of this Court in the case of Committee of Management Vaidik Higher Secondary Schools v. District Inspector of Schools, (1993) 2 UPLBEC 934. In the said case, the Court held that one of the facets of principles of natural justice is that all the materials, on which the decision is based, should be apprised to the effected party and he must be given opportunity to adduce evidence or material in his favour. In the said case, the Court held that one of the facets of principles of natural justice is that all the materials, on which the decision is based, should be apprised to the effected party and he must be given opportunity to adduce evidence or material in his favour. If an action is taken against a person on the basis of certain material or evidence without bringing the same to the notice of such person is violative of procedural safeguard. The said decision has been followed by this Court in the case of Committee of Management, Devatrya Adarsh Inter College, Bulandshahr and another v. Deputy Director of Education and others, 1996(3) ESC 217 (All). 21. I have also seen the objections filed by the petitioner before the second respondent, which is on the record as annexure-11 to the writ petition. The second respondent while passing the order of transfer of the sixth respondent has not adverted to various points raised by the petitioner in his objections. 22. Even if the petitioner was not present on the date when the matter was heard by the second respondent, he ought to have considered various objections raised by the petitioner. Not considering those objections, itself, vitiates the impugned order as one of the facets of natural justice is that the point raised by a person against whom the order is passed, be considered even if the personal hearing is not necessary. 23. In view of the facts mentioned above, I find that the impugned order stands vitiated and it is in violation of principles of natural justice on the following grounds: (i) the petitioner was prevented from sufficient ground to appear before the second respondent. There is no material on record that he deliberately adopted dilatory tactics, on the contrary, it appears that his absence was for bona fide reasons; (ii) the material relied upon by the second respondent in his order, was not supplied to the petitioner; (iii) the second respondent has not adverted to the detailed objections filed by the petitioner. 24. There is no material on record that he deliberately adopted dilatory tactics, on the contrary, it appears that his absence was for bona fide reasons; (ii) the material relied upon by the second respondent in his order, was not supplied to the petitioner; (iii) the second respondent has not adverted to the detailed objections filed by the petitioner. 24. Coming to the submissions made by learned Senior Advocate that there are exceptions on natural justice and since this Court has heard the petitioner, as such there is no need to remit the matter to the authority concerned as the principles of natural justice have now been complied with, I am unable to subscribe the submissions made by learned Senior Counsel. 25. The natural justice is a requirement of fair play in action in a civilized justice system and good governance. One of its purpose is prevention of miscarriage of justice. Over the times the thin line between the administrative and quasi-judicial authorities has stand obliterated by a catena of decisions of the Supreme Court. The principles of natural justice have now an important place in modern administrative law. The issuance of natural justice is “fair play in action”. In the words of Justice Krishna Iyer in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405 , it is not a bull in china shop nor it is a bee in one’s bonnet. It’s essence is good conscience in a given situation; nothing more - but nothing less. Relevant part of the said judgement reads thus: “48. ...It is not a bull in a china shop, nor a bee in one’s bonnet. Its essence is good conscience in a given situation; nothing more —but nothing less. The ‘exceptions’ to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law, without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the commonsense of the situation.” 26. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law, without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the commonsense of the situation.” 26. The Supreme Court has quoted with approval the judgement of A.R. Antulay v. R.S. Nayak and another, AIR 1988 SC 1531 , in the case of Rajasthan State Road Transport Corporation and another v. Bal Mukund Bairwa (2), (2009) 4 SCC 299 , relevant part of which reads as under: “35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.R. Antulay (supra), this Court held: (SCC p. 660, para 55) “55. ...No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity.”” 27. The Supreme Court in the case of Smt. Indira Nehru Gandhi v. Shri Raj Narain, AIR 1975 SC 2299 , has held that if an authority/body is given power without any specific provision that rules of natural justice shall apply, the principle of natural justice would apply. Similar view was taken by the Supreme Court in S.L. Kapoor v. Jagmohan and others, AIR 1981 SC 136 . 28. Having due regard to the facts of the case, in my view, the impugned order dated 20.8.2015 is illegal for the reasons stated above and stands vitiated. It is accordingly set aside. Parties are at liberty to raise all other issues before the authority concerned/the second respondent who shall decide the matter after furnishing opportunity to the petitioner and the sixth respondent as well as the Committee of Management of the Institution. The said exercise shall be completed expeditiously, not later than three months from the date of communication of this order. 29. The sixth respondent has joined the Institution and is working for the last one year. In view of the said facts, in my view he may continue but his continuance shall abide by the result of the fresh order to be passed by the second respondent. 30. The writ petition is, accordingly, allowed. 31. No order as to costs. ——————