JUDGMENT B.S. Chauhan and Arun Tandon, JJ.
1. Heard Shri Lihazur. R. Khan on behalf of the petitioner; Shri P.S. Baghel on behalf of respondent Nos. 1 and 2, Shri H.N. Singh for respondent No. 3, learned Standing Counsel on behalf of respondent Nos. 4 and 5 and Shri U.N. Sharma learned Senior Counsel assisted by Shri Amit Sthalekar on behalf of respondent Nos. 6 and 7.
2. The Hamidia Girls Degree College, Allahabad is a Girls Institution established and managed by Muslim Minority. The said Degree College is an Associate College of the University of Allahabad. The petitioner Nasreen Ara was appointed as a Lecturer in the said College with the approval of the Vice Chancellor of the University on 30/4/1988. The petitioner was served with a charge-sheet dated 19/1/2005, to which she submitted reply. Enquiry proceedings were held by the Officer so appointed. The Inquiry Officer submitted his report which was forwarded to the petitioner under letter of the Manager dated 09th May, 2005 calling upon the petitioner to submit her reply 3) against the findings recorded in the inquiry report.
3. The petitioner is said to have forwarded a letter dated 20/5/2005 to the Director, Higher Education U.P. as well as to the Higher Education Minister, Government U.P. for transfer of the inquiry to some other Inquiry Officer. She however submitted an apology letter to the Manager of the Institution on 21/8/2005 followed by letter dated 27/7/2007. The Manager of the Institution vide his letter dated 07/9/2005 communicated the decision taken in the meeting of the Managing Committee of the institution dated 31/8/2005 qua imposition of the penalty of removal from service with immediate effect. The petitioner made a representation against the said order before the Vice Chancellor of the University, while the representation was pending, she approached this Court by means of this writ petition. During the pendency of the writ petition, the Vice Chancellor has proceeded to accord approval to the decision so taken by the Committee of Management. The order of the Vice Chancellor has been challenged by means of the Amendment Application which has been allowed by us.
4. On behalf of the petitioner it has been contended that inquiry proceedings have taken place in violation of principles of natural justice and that the punishment has been inflicted, contrary to provisions of Section 35 (2) and the 1st Statute framed under the State Universities Act, 1973, (hereinafter called the 'Act 1973') which according to parties continue to apply as in view of Section 44 of the Act No. 25 of 2005 (Central Universities Act) as no Statutes for the subject have been framed under the Central Act.
5. Counter affidavit has been filed on behalf the Committee of Management of the Institution wherein the allegation that inquiry proceedings have taken place in violation of the principles of natural justice have been specifically denied and it has been stated that the Vice Chancellor has approved the punishment imposed as required under Section 35 (2) of the Act, 1973.
6. It is further submitted that from the records of the present petition as well as from the stand taken by the petitioner during the departmental proceedings, it is established beyond doubt that the petitioner was involved in fabrication of documents, namely letter of the Accountant General of State of Uttar Pradesh for the purpose of monetary benefits i.e., House Rent Allowance. In view of the admission of the guilt, persons like the petitioner who are appointed as teachers are not fit to be retained In service, therefore, this Court may not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India in the facts of the case.
7. In the present writ petition an interim order was granted by the Court on 28/11/2005, whereby the operation of the impugned order of punishment dated 07/9/2005 and suspension order dated 06/1/2005 were stayed and the petitioner was directed to be reinstated. Against the said order, the College filed Special Leave to Appeal (Civil) No. 25411/2005. In the said appeal, the Hon'ble Supreme Court initially granted an interim order, whereby the operation of the order of this Court was stayed. The Special Leave to Appeal was finally decided vide judgment and order dated 26/2/2006 with a request to the High Court to decide the writ petition finally on merits within three months and till the decision of the writ petition the interim order passed by the Hon'ble Supreme Court was to continue. In compliance of this order the writ petition was taken up for final hearing.
8. We have heard counsel for the parties and have gone through the records of the petition.
9. For appreciating the issue, as to whether an order of punishment passed by a minority institution can take effect or not without prior approval of the Vice Chancellor under Section 35 (2) of the Act 1973 and with reference to the provisions of the U.P. Higher Education Services Commission Act, 1980 may be examined. Sections 24 and 30 of the Act, 1980 read as follows:
Section 24. Exemptions to Minority Institutions Notwithstanding anything contained in this Act, the Management of any college established by a minority based on religion or language which the minority has the right to administer, shall be entitled to appoint, dismiss, remove, terminate the services of or reduce in rank a teacher or take other disciplinary measures subject only to the approval of the Commission and of the University concerned.
Section 30. Act to have overriding effect - The provisions of this Act, shall have effect notwithstanding anything to the contrary contained in the Uttar Pradesh State Universities Act, 1973 or the Statutes or Ordinances made thereunder.
Section 35 (2) of the 1973 Act reads as follows:
(2) Every decision of the Management of such college to dismiss or remove a teacher or to reduce him In rank or to punish him in any other manner shall before it is communicated to him, be reported to the Vice-chancellor and shall not take effect unless it has been approved by the Vice-Chancellor:
Provided that in the case of colleges established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution of India, the decision of the management dismissing removing or reducing in rank or punishing in any other manner any teacher shall not require the approval of the Vice Chancellor, but, shall be reported to him and unless he is satisfied that the procedure prescribed in this behalf has been followed, the decision shall not be given effect to.
10. From Section 30 of the Act, 1980 quoted above, it is apparently clear that the Act, 1980 has an overriding effect and the provisions of the Act, 1980 shall prevail and shall be given effect to notwithstanding anything to the contrary contained in the Act, 1973 or the Statutes or Ordinances made thereunder. Section 24 of the Act, 1980 will therefore prevail over the provisions of the Act of 1973. In view of specific language of Section 24 of the Act, 1980, the Management of the minority institution has a power to appoint, dismiss, remove and terminate the services of or reduce in rank a teacher or take other disciplinary measures subject only to approval of the Commission and of the University concerned.
11. Similarly, under proviso 35(2) (which applies to minority institution) no approval of the Vice Chancellor is required only action taken is to be reported to him.
12. From a bare reading of the aforesaid two provisions it logically follows that so far as the minority institutions are concerned any decision to punish a teacher taken by the Management takes effect immediately and no prior approval of the Vice Chancellor is required.
13. We may further record that the Vice Chancellor has also proceeded to accord approval to punishment inflicted by the Committee of Management upon the petitioner and in such circumstances the aforesaid objections lose all significance.
14. It was orally contended before us by the counsel for the petitioner that the Manager on his own has imposed the impugned punishment order without there being any resolution of the Committee of Management. With reference to the stand so taken by the counsel for the petitioner, we required the Counsel for the Committee of Management to produce the original records in respect of the resolution of the Committee of Management dated 31/8/2005 referred to in the letter of the Manager of the Institution dated 07/9/2005. The original register which records the minutes of the Committee of the Management has been produced before us. The same was examined in the presence of the counsel for the petitioner and it was noticed that decision to inflict the punishment has been taken by the Committee of Management under its resolution dated 31/8/2005, and the Manager of the institution has only communicated the decision so taken vide letter dated 07/9/2005.
15. We may n6w consider the other objections which has been raised by the petitioner, qua the procedure which has been adopted in the departmental inquiry. Various facts and documents on record of the writ petition have been referred to by the counsel for the petitioner.
16. For our purpose it would be suffice to notice Charge Nos. 3 and 4 as levelled against the petitioner and the reply submitted thereto by the petitioner during the departmental inquiry before the Inquiry Officer. The proceedings in that regard are contained in Annexure 23 of the writ petition and the relevant portion thereof reads as under:
INQUIRY PROCEEDINGS HELD ON 25-03-20Q5 IN CONTINUATION TO ENQUIRY PROCEEDINGS HELD ON 24-03-2QQ5 AGAINST DR. NASREEN ARA IN PURSUANCE TO CHARGE SHEET DATED 19-01-2005.
At the out set the Presenting Officer read out the Article of Charges No. 3 and 4 to the Charge Officer as under:
Article 3:
That you caused wrongful gain to yourself and wrongful loss to the college and government money by drawing and claiming House Rent Allowance from the year 1990 (when you got married) to 2003 although your husband Mohd. Shamim Khan was employed In Accountant General's Office U.P. Allahabad during this period and had claimed and drawn House Rent Allowance himself which was impermissible under rules and gave rise to various audit objections.
Article 4:
That further with a view to deceive and misguide the college, you gave letter dated 8-10-1996 annexing an alleged letter No. DA-TR-301 dated 13-9-1996 purportedly of the Accountant General's Office, U.P. Allahabad showing that your husband was posted at Sultanpur. You again reiterated the same position vide your letter dated 22-1-2003 and continued to draw House Rent Allowance from the year 1990 to 2003 whereas the letter dated 15-12-2004 of the Accountant General's Office U.P. Allahabad conclusively shows that your husband was all along with posted at Allahabad and had also drawn House Rent Allowance and thus your action in fabricating and forgoing documents and giving false information to the college all these years for the purpose of claiming and drawing House Rent Allowance is highly improper and reprehensible and shows our lack of devotion to duty and maintaining absolute integrity.
The Presenting Officer enquired from the Charged Officer as to what she had to say in regard to the above Article of Charges.
The Charged Officer replied that she had already given her submission letter dated 24-3-2005 and had nothing further to say.
17. This letter dated 24th March 2004, referred to above has been enclosed as Annexure 22 to the writ petition and reads as under:
Submission lsok esa] bUDok;jh vkfQlj tukc lkfnd gqlSu lkgc fo"k;% pktZ'khV fnukad 19-1-05 ds lUnHkZ esa egksn;] vki ls lfou; fuosnu gS fd dkyst ds staff ds misunderstanding vkSj esjh ukle>h ds dkj.k ;g lc dqN gks x;k gS A esjh 17 lky dh ukSdjh gS ftldks vc rd eSus bZekunkjh ls iwjh dh gS A vUtkus esa eq>ls tks xyrh gks x;h gks mlds fy, eS {kek pkgrh gwW A blds fy, eSa thou eas lnSo vkidh vkHkkjh jgwWaxh A esjh nks csfV;ka gS ftudh ijofj'k dh esjh ftEesnkjh gS blfy, esjk service esa jguk cgqr t:jh gS vYila[;d leqnk; ds gksus ds ukrs eq>s vU; fdlh txg ukSdjh feyuk dfBu gS A eS Hkfo"; esa fdlh Hkh rjg ds dkyst ds eku lEeku ds fo:) dksbZ dk;Z ugh d:axh A vr% vkils vuqjks/k gS fd esjh leL;k dks ns[krs gq, eq>s {kek fd;k tk;s A fnukad 24-3-05 vkidh vkKkdkjh g0 vLi"V ¼Mk0 uljhu vkjk½ jhMj & f'k{kk 'kkL= gehfn;k xYlZ fMxzh dkyst bykgkckn A
18. From a bare reading of the aforesaid, it would be apparently clear that the petitioner has admitted the guilt of fabricating letters of Government Officials with ulterior motive of withdrawing House Rent Allowance. The factum of such fabricated letter dated 13/9/1996 having been filed by the petitioner has not been disputed even before us. The only explanation furnished is that the petitioner has committed a mistake and had asked for pardon which has not been accorded to by the Committee of Management. We, therefore, record that the petitioner admits the guilt of fabricating and manufacturing documents for financial gains.
19. Petitioner is a teacher appointed for educating students. The standards expected of a person practising the noble teaching profession must be ideal so that the students may know and practice the best principles of a civilised life.
20. The requirement of education for girls and the functions of a teacher have been dealt with and explained at some length by the Hon'ble Supreme Court of India in the case of Avinash Nagra v. Navodaya Vidyalaya Samiti and Ors. , which read as follows:
11. It is in this backdrop, therefore, that the Indian society has elevated the teacher as "Guru Brahma, Guru Vishnu, Guru Devo Maheswaraha". As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance. Obviously, therefore, the teacher was placed on the pedestal below the parents. The State has taken care of service conditions of the teacher and he owes dual fundamental duties to himself and to the society. As a member of the noble teaching profession and a citizen of India he should always be willing, self-disciplined, dedicated with integrity to remain ever a learner of knowledge, intelligently to articulate and communicate and imbibe in his students, as society duty, to impart education, to bring them up with discipline, inculcate to abjure violence and to develop scientific temper with a spirit of enquiry and reform constantly to rise to higher levels in any walk of life nurturing constitutional ideals enshrined in Article 51-A so as to make the students responsible citizens of the country. Thus the teacher either individually or collectively as a community of teachers, should regenerate this dedication with a bent of spiritualism in broader perspective of the constitutionalism with secular ideologies enshrined in the Constitution as an arm of the State to establish egalitarian social order under the rule of law. Therefore, when the society has given such a pedestal, the conduct, character, ability and disposition of a teacher should be to transform the student into a disciplined citizen, inquisitive to learn, intellectual to pursue in any walk of life with dedication, discipline and devotion with an enquiring mind but not with blind customary beliefs. The education that is imparted by the teacher determines the level of the student for the development, prosperity and welfare of the society. The quality, competence and character of the teacher are, therefore, most significant to mould the calibre, character and capacity of the student for successful working of democratic institutions and to sustain them in their later years of life as a responsible citizen in different responsibilities. Without a dedicated and disciplined teacher, even the best education system is bound to fail.It is, therefore, the duty of the teacher to take such care of the pupils as a careful parent would take of its children and the ordinary principle of vicarious liability would apply where negligence is that of a teacher. The age of the pupil and the nature of the activity In which he takes part am material factors determining the degree and supervision demanded by a teacher.
12. It is axiomatic that percentage of education among girls, even after independence, is fathom deep due to independence, is fathom deep due to indifference on the part of all in rural India except some educated people, Education to the girl children is nations asset and foundation for fertile human resources and disciplined family management; apart from their equal participation in socio-economic and political democracy. Only of late, some middle-class people are sending the girl children to co-educational institutions under the care of proper management and to look after the welfare and safety of the girl. Therefore, greater responsibility is thrust on the management of the schools and colleges to protect the young children, in particular, the growing up girls, to bring them up inn disciplined and dedicated pursuit of excellence. The teacher, who has been kept in charge, bears more added higher responsibility and should be more exemplary. His/her character and conduct should be more like Rishi and as loco parentis and such is the duty, responsibility and charge expected of a teacher. The question arises whether the conduct of the appellant is befitting with such higher responsibilities and as he by his conduct betrayed the trust and forfeited the faith whether he would be entitled to the full-fledged enquiry as demanded by him? The fallen standard of the appellant is the tip of the iceberg in the discipline of teaching, a noble and learned profession; it is for each teacher and collectively their body to stem the rot to sustain the faith of the society reposed in them. Enquiry is not a panacea but a nail in the coffin. It is self-inspection and correction that is supreme....
21. The Hon'ble Supreme Court of India in the case of Hira Nath Mishra and Ors. v. The Principle, Rajendra Medical College, Ranchi and Anr. , has specifically held that the rules of principles of natural justice are not inflexible and may differ in different circumstances, where proper enquiry is held by an enquiry committee comprising of independent persons in respect of allegations of indecent behaviour by male students against their mates of a girls' hostel, the rules of principles of natural justice did not require that the statements of girl students should be recorded in the presence of male students concerned.
22. The Hon'ble Supreme Court of India in the case of State Bank of Patiala and Ors. v. S.K. Sharma , examined the principles of natural justice in the context of disciplinary proceedings and held as follows:
We may summarize the principles emerging from the above discussion. (These are by no means Intended to be exhaustive and are evolved keeping in mind in view of the context of disciplinary enquiries and others of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with was explained herein before and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity , and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is on of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could not be waived by him, then the Court or the Tribunal should made appropriate directions (include the setting aside of the order of punishment), keeping In mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing" (a) in the case of former, the order passed would undoubtedly be invalid (one may call it "Void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi ateram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query, (it is made clear that this principle (No.5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principles of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule of varying situations that arise before them.
(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram pattern. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
23. In the aforesaid judgment the Hon'ble Supreme Court has clarified that object of rules of principles of natural justice is to ensure that there would not have been failure of justice. The Hon'ble Supreme Court has reiterated that the rules of principles of natural justice are not inflexible rules and mere technical violation of some of the rules of procedure prescribed will not amount to negation of justice. The Court is to keep in mind that the object of the rules is to ensure that there should not be failure of justice, but every violation of the rules of the procedure cannot vitiate the action taken, if in interest of State or public interest rules of procedure are required to be curtailed. The Court must balance public/state interest with the requirement of principles of natural justice. It has been held that several procedural provisions governing disciplinary enquiry under the statutory provisions "are nothing but elaborations of the principles of natural justice and their several process". The ultimate test is all proceedings taken together, whether the delinquent officer/employee did or did not have a fair hearing.
24. The complaint of violations of principles of natural justice has to be examined from view point of substantial compliance, as the overriding objective underlying the rules is to ensure a fair hearing and to ensure that there is no failure of justice.
25. In view of the aforesaid, we are satisfied that persons like the petitioner who is appointed to impart education but is involved in fabrication of documents for monetary gains do not deserve any sympathy/relief under Article 226 of the Constitution of India. This Court, therefore, refuses to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India in respect of such a teacher. The writ petition is accordingly dismissed.