JUDGMENT R.K. Agrawal, J.
1. Since all these writ petitions relate to the post of the Principal of Madan Mohan Malviya Inter College, Karchhana, Allahabad, they have been heard together and are being decided by a common Judgment.
2. Civil Misc. Writ Petition No. 36846 of 1997 has been filed by the Committee of Management of Madan Mohan Malviya Inter College, Karchhana, Allahabad through its Manager, Girijesh Dwivedi seeking a writ, order or direction in the nature of certiorari quashing the order dated 23rd September, 1997 passed by the U.P. Secondary Education Services Commission, Allahabad, respondent No. 1 filed as Annexure-11 to the writ petition. The petitioners further seek a writ, order or direction in the nature of mandamus directing the U.P. Secondary Education Services Selection Commission (now the Board), Allahabad to decide afresh in accordance with law the entire proposal of dismissal dated 22.9.1996 Including the financial Irregularities and approve the same. A further writ of mandamus is sought to direct the District Inspector of Schools not to decide any matter relating to the financial irregularity as directed by the Commission vide order dated 23rd September, 1997.
3. Civil Misc. Writ Petition No. 628 of 1998 has been filed by Karuna Kant Tewari seeking a writ, order or direction in the nature of certiorari to call for the records of the case and to quash the order dated 23rd September, 1997 passed by the U.P. Secondary Education Services Selection Board, respondent No. 1 filed as Annexure-1 to the writ petition in so far as it relates to the Charges No. 2, 10, 11 and 1 (partly) and other consequential reliefs.
4. Civil Misc. Writ Petition No. 42211 of 2002 has been filed by Ravi Shanker Tripathi seeking a writ, order or direction in the nature of certiorari quashing the order dated 24th September, 2002 passed by the Committee of Management of Madan Mohan Malviya Inter College, Karchhana, Allahabad, respondent No. 2 filed as Annexure-8 to the writ petition. He further seeks a writ of mandamus directing the respondents not tp interfere in his peaceful functioning as Principal of the College.
5. Briefly stated the facts giving rise to the Writ Petition No. 36846 of 1997 are as follows :
At Karchhana in the district of Allahabad there is an Intermediate college known as Madan Mohan Malviya Inter College, (hereinafter referred to as 'the College'), which is recognized under the provisions of U.P. Intermediate Education Act, 1921, (hereinafter referred to as 'the Act'). The provisions of the U.P. High School and Intermediate Colleges (Payment of Salaries to the Teacher and other Employees) Act, 1971 are also applicable. According to the petitioners. Karuna Kant Tewari, respondent No. 3 was arrested on 12th October, 1995 in Case Crime No. 181/95 under Section 306, I.P.C. Police Station Karchhana, district Allahabad. It related to the case of suicide by Anupam Kutwari, a student of the College. Karuna Kant Tewari was released on bail after nine days. The Committee of Management vide resolution dated 15th October, 1995 placed Karuna Kant Tewari under suspension. The next seniormost teacher, Harendra Narain Singh, was appointed as officiating Principal who continued till his retirement on 30th June, 1996. The Committee of Management vide its resolution dated 15.10.1995 constituted a Sub-Committee to hold enquiry against Karuna Kant Tewari. It framed eight charges and sent the charge-sheet by registered post to Karuna Kant Tewari. Karuna Kant Tewari submitted his reply. The Manager issued a show cause notice dated 7.12.1995 calling upon Karuna Kant Tewari to show cause to the various charges. A supplementary charge-sheet was also issued. However, Karuna Kant Tewari did not submit any reply on the ground that he had not received any supplementary charge-sheet. The Sub-Committee found Karuna Kant Tewari guilty of the charges levelled against him and submitted its report. It is alleged by the Committee of Management that copy of the enquiry report was sent to Karuna Kant Tewari but he did not give any reply/explanation. The Committee of Management proposed that Karuna Kant Tewari be dismissed from service. The papers were sent to the U.P. Secondary Education Services Commission (hereinafter referred to as 'the Commission'), for its approval. The Commission after giving opportunity of hearing to the respective parties found that the Charges 2 and 10 to have been proved. In respect of Charge No. 11 the Commission found that Karuna Kant Tewari is guilty of financial Irregularities and directed the District Inspector of Schools to make further investigation. Charge No. 1 was found to have been partly proved. However, the Charges No. 3, 4, 6 to 9 and 12 to 14 were not found to be proved. The Charge No. 5 was not taken into consideration as the matter was subjudice before the Court. The Commission vide order dated 23.9.1997 directed for stoppage of one increment on permanent basis, awarding of adverse entry in the service records and directed the District Inspector of Schools to investigate the accounts for the last five years for the alleged financial irregularities and to take appropriate action. The order dated 23rd September, 1997 passed by the Commission is under challenge in the present writ petition.
6. Civil Misc. Writ Petition No. 628 of 1998 has been filed by Karuna Kant Tewari challenging the aforementioned order dated 23rd September, 1997 passed by the Commission in which punishment of stoppage of one increment on permanent basis, recording of adverse entry and directing the District Inspector of Schools to make investigation of the accounts of the College for the last five years for finding out financial irregularities and to take appropriate action has been directed.
7. Civil Misc. Writ Petition No. 42211 of 2002 has been filed by Ravi Shanker Tripathi challenging the order dated 24th September, 2002 passed by the Committee of Management of the College whereby the Committee of Management had directed the petitioner to handover the charge of the officiating Principal to Vijay Shanker Tewari, respondent No. 3. According to the petitioner, the Committee of Management passed a resolution proposing that Karuna Kant Tewart, Principal of the College, be dismissed from service which order was partly disapproved by the Commission vide order dated 23rd September, 1997. The order dated 23rd September, 1997 has been challenged by the Committee of Management before this Court by means of Civil Misc. Writ Petition No. 36846 of 1997 in which this Court had passed an interim order staying the operation of the order dated 23rd September, 1997 with a condition that the petitioners shall go on paying salary to Karuna Kant Tewari in accordance with law month by month leaving it open to the petitioners to take or not to take work from him. After the said order was passed the Committee of Management gave charge to Vijay Shanker Tewari to officiate as Principal of the College. Vijay Shanker Tewari has been selected by the Commission as Principal in Pundit Shiv Govind Mishra Arya Nagar Inter College, Kanpur. On account of some reason he could not Join and, therefore, he came back on 14th May, 1999. When Vijay Shanker Tewari had taken leave to join at Pundit Shiv Govind Mishra Arya Nagar Inter College, Kanpur, the Committee of Management appointed the petitioner on 10th April, 1999 as officiating Principal and since then he is continuously functioning as Principal of the College. According to the petitioner, the Associate District Inspector of Schools made an inspection of the College on 25th January, 1999 and found certain financial Irregularities committed by Vijay Shanker Tewari. He passed an order on 3rd February, 1999 that Vijay Shanker Tewari has embezzled a sum of Rs. 1,42,896.85 Ps. whereupon the Committee of Management did not permit Vijay Shanker Tewari after he resumed his duties to officiate as Principal. However, vide order dated 24th September, 2002 the Committee of Management has directed the petitioner to handover the charge of officiating Principal to Vijay Shanker Tewari.
8. I have heard Dr. R.G. Padia assisted by Sri Prakash Padia and Sri Ashok Khare, B.D. Mandhyan, Sri Anil Bhushan and Sri K.K. Tripathi, learned counsels for the respective parties.
9. Dr. Padia, learned counsel appearing for the Committee of Management submitted that under Section 21 of the U.P. Secondary Education Services and Selection Board Act, 1982, (hereinafter referred to as 'the 1982 Act'), the Commission, now Board, is only empowered to grant approval on the question of dismissal, removal, reduction in rank and reduction in emoluments or in withholding an increment of any teacher. The Commission is not empowered to substitute the punishment proposed by the Committee of Management with any lesser punishment. It can at best direct the Committee of Management to reconsider the punishment awarded to the erring teacher. He relied upon a decision of this Court in the case of Managing Committee of Gochar Krishi Inter College and Anr. v. U.P. Secondary Education Services Selection Board, Allahabad and Ors., 2002 (1) AWC 574. He further submitted that the word "approval" as contained in Section 21 of the 1982 Act means expression of commendation or of agreement with. It is different from appeal, which is the right of entering a superior court and invoking its aid and interposition to redress the error of the Court below. According to him, while according approval to the proposal of the Management the Commission is not acting like a superior or higher court for correcting or rectifying the decision of the lower court but is merely consenting to some act or thing done by another, viz., the management of the Institution. He relied upon the Division Bench decision of this Court in the case of Rajendra Lal Srivastava v. Secondary Education Service Commission and Ors., 2003 (2) AWC 1434.
10. He further submitted that the charges levelled against Karuna Kant Tewari were very serious in nature and, therefore, looking to the seriousness of the charges the Commission ought not to have interfered with the findings of the Inquiry Committee which had been accepted by the Committee of Management. He further submitted that the Commission should not have re-appreciated the material and evidence on record and interfered with the quantum of punishment. In support of the aforesaid submission he relied upon the following decisions :
(1) Union of India and Ors. v. Narain Singh, 2002 SCC (L&S) 623.
(2) Tripura Gramin Bank and Ors. v. Tarit Baran Roy and Anr., 2001 (2) AWC 1125 (SC) : 2002 SCC (L&S) 727.
11. He further submitted that even on merits the Commission was not justified in holding that the Charge Nos. 3, 4, 6 to 9 and 12 to 15 were not proved. According to him, there was enough material on record to establish those charges and findings of the Commission are vitiated. Further the Commission was not Justified in not going into the validity of the Charge No. 5 and holding that Charge No. 1 has been partly proved. According to him, even if two charges which have been proved, i.e., Charges No. 2 and 10, the Commission ought not to have Interfered with the proposal of dismissal of respondent No. 3 from service.
12. Sri Ashok Khare, learned counsel appearing for Karuna Kant Tewari submitted that the provisions of Section 21 of the 1982 Act is akin to the provisions of Section 16G (3) of the Act, which require approval of the District Inspector of Schools for proposal of punishment. The Commission cannot only look into the question of quantum of punishment but can also go into the question of guilt. He relied upon a decision of this Court in the case of Committee of Management of M.L.M.L. Inter College, Faizabad v. District Inspector of Schools, Faizabad and Anr., 1980 Lab IC 595. According to him, under Section 21 of the 1982 Act, the Commission while deciding whether or not to grant approval for the removal of a teacher, has necessarily to go into the merits of the case and apply its mind Independently to the question whether the evidence on record justified the removal. The Commission is a high powered body and as a body entrusted with the Important function of supervising the actions taken by the management against the teachers; it has to discharge its responsibility circumspectively. It cannot exercise its function effectively unless it scrutinizes the material and applies its mind carefully to the facts on record. He relied upon a decision of the Hon'ble Supreme Court in the case of Committee of Management, Bishambhar Sharan Vaidic Inter College, Jaspur, Nainital and Anr. v. U.P. Secondary Education Service Commission and Ors., 1995 Supp (3) SCC 244. So far as the powers and jurisdiction of the Commission in modifying the punishment to a lesser extent is concerned he submitted that the Commission has the necessary power and jurisdiction. He relied upon the following decisions :
(1) Pradumna Kumar Jain v. U.P. Secondary Education Service Commission, Allahabad and Ors.. 1997 (3) AWC 1573.
(2) Chhatradhari Singh v. Deputy Director of Education, Varanasi and Ors., 1998 (1) AWC 171.
(3) Raja Ram Shukla v. U.P. Secondary Education Service Commission, Allahabad and Ors., 1998 (1) AWC 513.
13. He further submitted that the Commission has rightly held that the Charge Nos. 3. 4, 6 to 9 and 12 to 15 have not been proved. According to him, even the Commission had committed the manifest error of law in coming to the conclusion that the Charge Nos. 2 and 10 have been proved and Charge No. 1 has been partly proved. He also submitted that finding of the Commission in respect of Charge No. 11 wherein the Commission has come to the conclusion that Karuna Kant Tewari is guilty of irregularities is vitiated. He, thus, submitted that order dated 23rd September, 1997 is liable to be quashed and the proposal of dismissal from service should have been disapproved in toto.
14. Learned counsel for Ravi Shanker Tripathi submitted that as there were serious charges of embezzlement against Vijay Shanker Tewari, he is not a fit person to be appointed as officiating Principal in the event the order of the Commission disapproving the proposal passed by the Committee of Management dismissing Karuna Kant Tewari from service is set aside and the proposal of the dismissal from service is approved. Learned counsel appearing for Vijay Shanker Tewari, however, submitted that merely on the basis of some report of the Associate District Inspector of Schools, submitted in the year 1999 regarding embezzlement of amount would not disentitle him to officiate as Principal of the College as more than four years have passed and neither any enquiry nor any action pursuant to report thereto has been taken so far.
15. Having heard the learned counsel for the parties, I find that Charge No. 1 related to holding of entrance examination in Class XI Science subject twice. The allegation made by the Committee of Management was that Karuna Kant Tewari demanded illegal gratification/money from the students for giving admission in Class XI Science subjects. This allegation has not been found to have been proved by the Commission. However, the Commission found that the number of students admitted in Class XI Science subjects was only 30% as compared to previous year and therefore, the Charge No. 1 is partly proved. The lesser number of admissions have not been explained satisfactorily by Karuna Kant Tewari. The allegation of taking illegal gratification has not been proved. Thus, Karuna Kant Tewari was responsible for making less number of admissions in Class XI Science subjects. The finding is based on appreciation of evidence and material on record and is not vitiated at all. So far as the Charge No. 2 is concerned the Commission has found that getting the answer books of Science subjects of Class XI for the year 1994-95 was not justified. Further, ultimate responsibility of the conduct of the sweeper in the Science Laboratory is upon the Principal and the Principal had not discharged his duties fully. The said finding is also based on appreciation of evidence and material on record and calls for no interference. In respect of Charges No. 3 and 4 the Commission has found that the sports activities and other extra curricular activities were conducted in the College and the charge in this regard is baseless. Learned counsel appearing for the Committee of Management could not point out any material to show that the finding recorded by the Commission is erroneous. In respect of Charge No. 5 the Commission has held that since the matter is subjudice it is not necessary to go into it. No exception can be taken to the approach of the Commission in this regard. Likewise, in respect of Charges No. 6, 7, 8 and 9 the Commission has found that the charges have not been proved. The findings have been recorded on the basis of the material and evidence on record and does not suffer from any illegality or infirmity. In respect of Charge No. 10 of the Commission has found that the Cash Book is not complete which shows irregularity and dereliction of duty. However, there is no allegation that any amount has been embezzled. In respect of Charge No. 11 the Commission has found that the Enquiry Committee had found a sum of Rs. 28,000 out of Rs. 34,000 to have been embezzled. There is no mention about Rs. 6,000 in the report. The Cash Book is incomplete. However, no material has been brought on record to prove the charge of embezzlement but he is guilty of irregularities and the Commission has directed the District Inspector of Schools to make investigation and to take necessary action. The Commission has recorded this finding on the basis of material and evidence on the record, which cannot be said to suffer from any infirmity. In respect of Charge Nos. 12, 13, 14 and 15 the Commission has found that the charges have not been proved. The findings are based on appreciation of evidence and material on record. They do not call for any interference.
16. The question still remains as to whether after finding Charges No. 2 and 10 to have been proved and Charge No. 1 having been partly proved the Commission was justified in disapproving the proposal of dismissal from service and modifying the punishment by directing for withholding of one increment on permanent basis and recording of adverse entry and directing the District Inspector of Schools to make Investigation into the alleged financial irregularities for the last five years or not.
17. Prior to the coming into force the 1982 Act the dismissal/removal of a teacher from service was governed by the provisions of the Act. Section 16G (3) of Act provided as follows :
"16G. Condition of service of Head of Institutions, teachers and other employees.--(1) ...............
(2) ....................
(3) (a) No Principal, Headmaster or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments, or served with notice of termination of service except with the prior approval in writing of the Inspector. The decision of the Inspector shall be communicated within the period to be prescribed by regulations.
(b) The Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termination of service proposed by the management:
Provided that in the cases of punishment, before passing orders. Inspector shall give an opportunity to the Principal, the Headmaster or the teacher to show cause within a fortnight of the receipt of the notice why the proposed punishment should not be inflicted.
(c) Any party may prefer an appeal to the Regional Deputy Director, Education, against an order of the Inspector under Clause (b) whether passed before or after the commencement of the Uttar Pradesh Intermediate Education (Sanshodhan) Adhiniyam, 1966, within one month from the date of communication of the order to that party, and the Regional Deputy Director may, after such further enquiry, if any, as he considers necessary, confirm, set aside or modify the order, and the order passed by the Regional Deputy Director shall be final. In the case the order under appeal was passed by the very person holding the office of Regional Deputy Director while acting as Inspector, the appeal shall be transferred by the order of the Director to some other Regional Deputy Director for decision and the provisions of this clause shall apply in relation to decision by that other Regional Deputy Director as if the appeal had been preferred to himself.
(d) All appeals preferred under Clause (c), as it stood before the date of commencement of the Uttar Pradesh Intermediate Education (Sanshodhan) Adhiniyam, 1966 and pending decisions immediately before the said date shall be decided by the Regional Deputy Director, Education, in accordance with Clause (c) as substituted by the said Adhiniyam."
18. The aforesaid provision came up for consideration before a Division Bench of this Court in the case of Committee of Management of M.L.M.L. Inter College, Faizabad, (supra) wherein this Court held as follows :
"3. ...... Here, the D.I.O.S. and the Deputy Director are exercising powers conferred on them by the Legislature. When power is given to the D.I.O.S. to approve or disapprove of an order of punishment or suspension, that authority is bound to sit in Judgment over the decision of the Management, Jurisdiction of these authorities is not akin to the jurisdiction of a civil court. Although the proposal sent to the D.I.O.S. by the Management is for approval and the word 'approval' is not mentioned in the statutory provisions, it is obvious that the D.I.O.S., as the authority required to take a decision on the proposal, can review the findings and also the validity of the proceedings. That jurisdiction is certainly wider than the jurisdiction of a civil court in a suit brought by an employee against the employer.
4. Sri S.L. Varma, learned counsel for the petitioner, also argued that the approval of the D.I.O.S. was required only for proposed punishment and not for finding. Accordingly, he contended that the D.I.O.S. could look only into the quantum of punishment and not into the question of guilt. The words "proposed punishment" are similar to the words "proposed action" occurring in Section 240(3) of the Government of India Act, 1935, and Article 311(2) of the Constitution as originally enacted. It was held in Khem Chand v. Union of India, AIR 1958 SC 300, following High Commissioner for India v. I.M. Lall, 75 Ind App 225 : AIR 1948 PC 121, as follows :
"In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite obviously necessary that the Government servant should have the opportunity, to say if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves. Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment."
5. These observations are clearly attracted to interpretation of the words, "proposed punishment" occurring in Section 16G (3) of the Intermediate Education Act read with the Regulations. Accordingly, the finding of guilt is also within the Jurisdiction of the D.I.O.S. and the D.D.E."
19. In the case of Rajendra Lal Srivastava (supra) a Division Bench of this Court was deciding the reference made by the learned single Judge on the question as to whether Commission while considering the report of the sub-committee, is required to give its reasons for either approving or disapproving the report or without giving any reason, it can approve or disapprove the same. In this light the word "approval" occurring in Section 21 of the Act was considered and it was held as follows :
"8. Section 21 of the Act and also Clause 5 of the Regulation 5 of the Regulations, 1983 uses the expression "approval of the Commission". The dictionary meaning of the word "approval" is as under :
Webster's Third New Dictionary Certificate as to acceptability ; the act of approving ; approve applies to a feeling or expression of commendation or of agreement with, but it may suggest any Judicious attitude involved.
Law Lexicon By P. Ramanathan Alyer To accept as good or sufficient for purpose intended ;
to confirm authoritatively.
Black'sLaw Dictionary &mdash The act of confirming, ratifying assenting, sanctioning, or consenting to some act or thing done by another.
The word "approval", therefore, means expression of commendation or of agreement with. It is different from appeal, which is the right of entering a superior court and invoking its aid and interposition to redress the error of the Court below. In Oxford Dictionary, the appeal has been defined as the transference of a case from an inferior court to a higher court or Tribunal in the hope of reversing or modifying the decision of the former. In Law Dictionary by Sweet, the term "appeal" is defined as proceeding taken to rectify an erroneous decision of a court by submitting the question to higher court. In Black's Law Dictionary, appeal has been defined as resort to a superior (i.e., appellate) court to review the decision of an inferior (i.e., trial) court or administrative agency. A complaint to a higher Tribunal to an error or injustice committed by a lower Tribunal, In which the error or injustice committed by a lower Tribunal, in which the error or injustice is sought to be corrected or reversed. There is thus, a substantial difference between an "appeal" and "approval" and this difference has to be kept In mind while examining the correctness or validity of function which has to be performed by the Commission."
In paragraph 19 it further held that the Commission is not hearing an appeal but is performing the function of according approval to the proposal of management. The Commission is not acting like a superior or higher court for correcting or rectifying the decision of the lower court but is merely consenting to some act or thing done by another, viz., the management of the institution. It has not taken any contrary view to that taken by the Division Bench in the case of Committee of Management of M.L.M.L. Inter College (supra).
20. So far as the decision in the case of Committee of Management, Bishambhar Sharan Vaidic Inter College, Jaspur, Nainital and Anr. (supra) the Hon'ble Supreme Court has held as follows :
"The High Court has also committed an error in holding that the Commission could not have gone into the merits of the case. According to us, in view of the provisions of the said Section 21, the Commission while deciding whether or not to grant approval for the removal of a teacher, has necessarily to go into the merits of the case and apply its mind independently to the question whether the evidence on record justified the removal. It must be remembered that the Commission appointed under the Act is a high-powered body and as a body entrusted with the important function of supervising the actions taken by the Management against the teachers, it has to discharge its responsibility circumspectively. It cannot exercise its function effectively unless it scrutinizes the material and applies its mind carefully to the facts on record. Hence if the Commission goes through the entire record and the merit of the action taken, its action cannot be faulted. On both accounts, therefore, the High Court's order is wrong."
21. In the case of Pradumna Kumar Jain (supra), this Court has held that the Commission can modify the punishment proposed. It held as follows :
"6. Mr. Shandilya, relying on the order contained in Annexure-I, contends that the text of the order is in the nature of an order. By no stretch of imagination, according to him, the same could be termed as a direction. The phrase 'direction' does not postulate 'any scope for passing another order. It can only issue direction, nothing more nothing less. The contention of Mr. Shandilya cannot be accepted for the simple reason that the power to approve or disapprove includes the power to modify, which power is implicitly in it and is an established principle by now. It is an established principle that when an order is open to a superior authority to decide on the merits of it for the purpose of either affirming or reversing the same, the same is also akin to approving or disapproving. Inasmuch as though two different terms have been used, they mean the identical situation. To approve or to disapprove has the same meaning for all practical purposes to affirm or reverse. In respect of the appellate jurisdiction, it is the consistent view of the High Courts and the Apex Court that the power to affirm or reverse includes the power to modify. Unless such power or jurisdiction is barred by express provision, the same is always explicitly in it. But in the present case; the inclusion of the phrase "or may issue any other directions deemed fit in the case." Indicates the very existence of the power to modify. Such expression cannot be interpreted to narrow down the meaning so as to make the provision ineffective. An interpretation which furthers the aims and objects of the Statute is preferable to be accepted, against an interpretation which frustrates the same or narrows down the scope. The intention of the Legislature, it not explicit or express or cannot be covered even by implication, in that event, a narrow meaning cannot be imputed for interpreting a Statute. In the present case, it does not appear that the Legislature had ever intended to narrow down the meaning so as to confine the power or jurisdiction only on power to approve or disapprove. The inclusion of the expression in the phrase referred to above clearly indicates that the Legislature had intended some more powers beyond the narrow lane of approval or disapproval. Therefore, the order modifying the punishment to a lesser extent cannot be said to be without jurisdiction. Though argued with great vehemence and intelligently, I am unable to accept the contention of Mr. Shandilya with regard to this point.
7. Then again unless an act is expressly prohibited by law, the Court is not supposed to presume as a matter of general principle that certain act is prohibited beyond what has been expressly conferred to the extent it is acceptable on the principle as enunciated in the foregoing para, namely, to the extent that the power to approve or disapprove a particular order includes the power to modify such order as well particularly when the structure of the statute conceives of a liberal interpretation furthering the object and purpose for which the same is incorporated. The purpose and object of incorporation of the approval and disapproval has been ensured to safeguard the interest of the delinquent from the arbitrary and highhanded actions on the part of the Committee of Management. The checks and balance on the high handedness of the Committee of Management, as has been sought to be introduced by reason of incorporation of the power to approve or disapprove, surely will further the object and purpose if the construction as is being made herein, is accepted in the light of the observations made above. In the case of Narsingh Das v. Mangal Dubey. ILR 4 All 163, it was laid down :
"Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly for binding by the Code but on the perverse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law, as a matter of general principle prohibitions cannot be permitted."
22. The same view was taken by this Court in the case of Chhatra Dhari Singh (supra). It held as follows :
"9. So far as the question that it can only approve or disapprove and cannot pass any other kind of punishment other than that on which approval is sought for by the Committee of Management, is concerned, it appears to me to be wholly misconceived. Power to approve or disapprove envisages passing of any other order. The power is not restricted to such extent. Then again the provision relating to creating of power to approve also postulates passing of such other order. Inasmuch as Section 16G (3) of the U.P. Intermediate Education Act in Clause (b) specifically provides that the Inspector may approve or disapprove or reduce or enhance the punishment. Section 16G which is saved by the proviso to Section 21 of the U.P. Secondary Education Services and Selection Board Act, 1982 clearly preserves the approving authority to pass any kind of order other than of which approval is sought for by the Committee of Management."
23. In the case of Raja Ram Shukla (supra), this Court has held as follows :
"In the backdrop of above law, the decision of the Committee of Management does not receive finality and it is not expected that the Commission, as a matter of course, may accept the recommendation of the Committee of Management. If the contention of the learned counsel for the Committee of Management that the Commission has no power or jurisdiction to deviate from the recommendation of the power to pass appropriate orders as contemplated in Regulation 8, quoted above. The Commission cannot be relegated to the state of helplessness as in that event, its existence would become a mere formality. A reading of the various provisions contained in the Act, Rules and Regulations indicate that the Commission has been constituted for regulating the recruitment, appointment and proceedings of punishment in respect of teachers. The Commission has to exercise its effective control and supervision over the teachers as well as the Management Committee, in respect of matters falling within its domain."
24. In the case of Managing Committee of Gochar Krishi Inter College and another (supra), the learned single Judge has not considered the earlier binding decision in the case of Pradumna Kumar Jain (supra), Chhatra Dhari Singh (supra) and Raja Ram Shukla (supra). It held as follows :
"10. Section 21 of the Act provides restriction on dismissal of a teacher except with the prior approval of the Board. The power to approve also includes disapproval but the question in the present case is about the extent of powers of the Selection Board while approving or disapproving the proposal. Although, the regulations cannot curtail the powers under the Act, under which they are made. These can only enumerate the scope of powers. Regulation 7 authorises the Commission to call for any documents, considered relevant in the case from the management or the Inspector. This power is in aid of making an enquiry into the matter. Regulation 8, however, enumerates the scope of power of approval and provides that the Commission, after due consideration, shall approve or disapprove the punishment proposed or may issue any other directions deemed fit in the case. It is to be noticed that Section 16G (3) (b) of U.P. Intermediate Education Act, 1921, provides that the Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termination of service proposed by the management provided that in the cases of punishment, before passing orders, Inspector shall give an opportunity to the Principal, the Headmaster or the teacher to show cause within a fortnight of the receipt of notice why the proposed punishment should not be inflicted. After the enactment of U.P. Secondary Education Services and Selection Board Act, 1982, the powers of the Inspector under Section 16G (3) (b) of the U.P. Intermediate Education Act, 1921, in the case of institutions, which are not minority institutions, have been vested in the Selection Board, with significant absence of the power to reduce or enhance the punishment. The authority, specifically given to the Inspector, is conspicuously missing in Section 21 of the Act, 1982 read with regulations of 1985 and consequently, the power to give opportunity to the Principal, the Headmaster or the teacher to show cause why the proposed punishment should not be inflicted, is also not provided in Section 21 of the Act, 1982 or the regulations made thereunder. The Selection Board, therefore, has not been given the powers to either reduce or enhance the punishment.
"A question thereafter arises as to the extent and scope of the powers of the Board. In all the cases where the appointing authority is vested with discretionary powers, the power of enquiry, evidence, production of documents, the examination of charges and the defence taken by the delinquent is in the hands of the disciplinary authority. It is the disciplinary authority which has to form an opinion whether the charges were established after going through the record and evidence adduced by the department and the delinquent employee. The sufficiency or insufficiency of evidence, demeanour of witnesses and conduct of the delinquent employee is to be Judged by the disciplinary authority. The scrutiny by approving authority is to find out ; (1) whether the enquiry was conducted by the competent authority ; (2) whether the delinquent was informed of the charges ; (3) whether he was afforded opportunity to defend himself and that there was no prejudice caused on account of denial of such opportunity ; (4) whether the evidence led by department proves the charges and (5) whether the proposed punishment is commensurate to the charge. The power of approval cannot be extended to include a fresh enquiry in the matter. Even if the approving authority comes to the conclusion that the enquiry was not fair or Impartial or the principles of natural justice were violated or that the punishment is not commensurate to the charges, it can only send back the matter to the disciplinary authority. The power to inflict punishment or reduce or enhance the punishment has not been given under Section 21 of the Act, and the necessary conclusion is that the Commission does not have authority to re-examine the charges and to come to a different conclusion than arrived at by the Committee of Management,"
25. The learned single Judge in the case of the Managing Committee of Gochar Krishi Inter College (supra) has not taken into consideration the law laid down by the Hon'ble Supreme Court in the case of Committee of Management, Bishambhar Sharan Vaidic Inter College (supra) wherein it held that in view of the provisions of Section 21, the commission while deciding whether or not to grant approval for the removal of a teacher, has necessarily to go into the merits of the case and apply its mind independently to the question whether the evidence on record Justified the removal. It cannot exercise its function effectively unless it scrutinizes the material and applies its mind carefully to the facts on record. Hence if the Commission goes through the entire record and the merit of the action taken. Its action cannot be faulted. Thus, this decision is per incuriam. I am in complete agreement with the decision of this Court in Pradumna Kumar Jain, Chhatra Dhari Singh and Raja Ram Shukla (supra) that if the Commission is to apply its mind independently to the question whether the evidence on record justified the removal or not and has to apply its mind carefully to the facts on record and the merit of the action taken, then it can also direct for lesser punishment to be awarded if the case so Justified. The two decisions of the Hon'ble Supreme Court in the case of Union of India and others (supra) and Tripura Gramin Bank and others (supra) relied by Dr. Padia are not applicable in the present case inasmuch as in these cases the High Court had interfered with the punishment awarded to the delinquent employees. The Hon'ble Supreme Court held that High Court could not have done so. However, in the present case the Commission which has been empowered to go into the merits of the findings of the enquiry committee and the proposed punishment to be awarded by the Committee of Management, had considered the quantum of punishment and not by this Court.
26. In view of the foregoing discussions, I find no merit in Writ Petition No. 36846 of 1997 and 628 of 1998 and are therefore dismissed. Since the order dated 23rd September, 1997 passed by the Commission has been upheld, Writ Petition No. 42211 of 2002 has been rendered infructuous and is dismissed as such.