Hon'ble Manoj Misra,J.
(Delivered by Hon'ble Manoj Misra, J.)
1. These two petitions, by the same petitioner, raise common questions of law and fact and, therefore, with the consent of the counsel for the parties, are being decided by a common judgment. By Writ Petition No. 19812 of 2010, the petitioner, who is a Principal of K.P. Training College (hereinafter referred to as College) has challenged the order of suspension dated 26.10.2009, as also the charge-sheet dated 29.03.2010. During the pendency of this petition, by order dated 06.08.2010, the petitioner was reinstated albeit without financial and administrative powers, accordingly, the petitioner got the petition amended thereby seeking for quashing of the order dated 06.08.2010 to the extent that it deprived her of her financial and administrative powers.
2. As no interim-order was passed in Writ Petition No. 19812 of 2010, the enquiry held in pursuance to the charge sheet culminated in a decision of the Governing Body, taken in its meeting dated 13.01.2011, wherein award of four alternative punishments to the petitioner was considered, which are as follows:-
"(i) Removal from the post of Principal,
(ii) Reversion to the post of Teacher,
(iii) Compulsory Retirement,
(iv) Continuing her on the post of Principal, her administrative and financial power may be kept in abeyance for a further period of six months and she may be provided (sic) to improve her relation with the teaching and non-teaching staff and promote academic atmosphere in the College."
3. Out of the aforesaid four alternative punishments, the 4th alternative was adopted in the following terms:-
"Sri A.R.N. Srivastava, the nominee of the Vice-Chancellor proposed that since she has already been allowed to improve her conduct one more opportunity may be provided to her. The fourth alternative may be adopted subject to warning that in case she does not improve her behavior with the teaching and non-teaching staff of the College and academic atmosphere of the college does not improve and she doesn't gain the confidence of the Management the matter may be placed before the Governing Council after six months and other alternative punishment at serial nos. 1, 2 and 3 may be considered for adoption. .................
The Committee taking a sympathetic view though it was the opinion of the members that she does not deserve in view of the serious charges having being proved, since the Management has lost confidence in her. But in view of the suggestion made by Dr. A.R.N. Srivastava she may be again given opportunity for six months................
Ultimately the Committee adopted proposal made by Sri A.R.N. Srivastava, nominee of the Vice-Chancellor and pass the same unanimously."
4. Pursuant to the aforesaid decision of the Committee of Management, the conduct of the petitioner was reviewed in a meeting of the Committee of Management, held on July 29, 2011. In the said meeting a decision was taken, which was communicated to the petitioner by the Chairman of the Committee of Management vide letter dated 29.7.2011, in the following words:
"Even subsequent to the said resolution you did not improve your relations with the administrative staff of the college and reports were received that you even instigated the students to protest against the hike in fee and other disciplinary measures adopted against them, spoiling the academic atmosphere of the college. A copy of the Complaints received from the staff is on record which may be perused. Smooth functioning of the institution is the prime concern of the Management and after watching your conduct for past two years the Committee is of the considered view that it will not be desirable in the interest of the institution to continue you as a Principal of the Institution, you have failed to maintain absolute integrity and devotion to the duty. Time and again you have flouted the lawful direction of the Committee of Management and had adopted arrogant attitude against them. The past management led by Ch. Jitendra Nath Singh as President had expressed his dissatisfaction after holding a fact finding enquiry on some of the similar charges and had given an opportunity to you in vain.
In the facts and circumstances the Committee has completely lost confidence in you and is of the view that your continuation in service will not be in the interest of the Institution.
However, keeping in view of your 35 years service to the Institution instead of taking a decision of either dismissing or terminating your services the Committee of Management is of the view that you should be compulsory retired without affecting your financial claims, though the management has the discretion of deduction of 10% to 15% of from your pensionary benefit. The aforesaid action is taken on account of the powers conferred [Under Ordinance 42 : Condition of the Service of Teachers of the Constituent College [Under Clause (2) of Statute 31] Section 6(j) and (n)] and the intimation is being sent to the Vice Chancellor, University of Allahabad.
The aforesaid order will come into effect immediately."
5. Aggrieved by the order of compulsory retirement, the petitioner filed Writ Petition No. 45607 of 2011 thereby seeking for quashing of the order dated 29.07.2011, as also for a direction to restrain the President/respondent No.4 and the Management from interfering with the working of the petitioner on the post of Principal with full financial and administrative powers.
6. The facts, in brief, are that the petitioner was working as a Principal since 10.02.1999 in K.P. Training College, Allahabad which became a constituent college of the University of Allahabad by virtue of Statute 31(1)(viii) of the First Statutes framed under the University of Allahabad Act, 2005, which duly incorporated and declared the University of Allahabad as an Institution of national importance. The affairs of K.P. Training College were being run and managed by a society, which according to the petitioner is known as K.P. Trust, whereas in the counter affidavit the name of the society has been disclosed as Kayastha Pathsala Prayag. The said society is registered under the Societies Registration Act. The Governing Body of the Society authorizes the President for nominating the Committee of Management of various educational institutions run and managed by the Society. The educational institutions run and managed by the said society in the city of Allahabad, as per the statement made in the counter affidavit, are as under:-
"(i) CMP Degree College, Allahabad;
(ii) K. P. Inter College, Allahabad;
(iii) Kulbhaskar Ashram P G College, Allahabad;
(iv) Kulbhaskar Ashram Inter College, Allahabad;
(v) K.P. B.Ed. College, Allahabad (now known as K.P. Training College, Allahabad);
(vi) K.P. Girls Inter College, Allahabad;
(vii) K.P. Convent School (English Medium), Allahabad;
(viii) K.P. Nursery School (Hindi Medium), Allahabad."
7. On 26.10.2009, the Chairman, Governing Council, K.P. Training College, Allahabad, served the petitioner with an order of suspension thereby appointing Dr. P.C. Srivastava, Principal, Sirsa Degree College, Allahabad as an enquiry officer authorized to draw article of charges and statements of misconduct and mis-behaviour with power to hold enquiry as per the procedure prescribed under the Ordinances. It appears, that Dr. P.C. Srivastava, who was appointed as an enquiry officer, on account of ill health, could not proceed further with the enquiry, therefore, Sri Anand Prakash Srivastava was appointed as an enquiry officer. Sri Anand Prakash Srivastava, on 29.03.2010, charged the petitioner with 14 charges, the gist of the charges are as follows:-
"(1) That the petitioner did not turn up to sign attendance register between 13.11.2009 to 1.2.2010, so as to avoid service of any order passed by the then enquiry officer and instead, attendance was got recorded in the University register, which delayed the enquiry, as also amounted to disobedience.
(2) That as Principal of the College, the petitioner spent 80% of the grant in modernization of her chamber, ante-room for assistant, fixing Air-Conditioner and valuable furniture in ignorance to the priority of construction of Class-rooms. As such was guilty of misusing her power as a Principal.
(3) That the 'Vidhayak-Nidhi Fund' provided by Sri Narendra Singh Gaur, instead of being utilized for construction of Class-room, was spent on Library room. Further an amount of Rs.3,77,789/- was incorrectly shown as spent for construction of one Room.
(4) That for obtaining approval of B.Ed. Classes a false declaration was given regarding number of Class Rooms, Library, Staff Rooms, etc. as a result of which the present Management had to shift the College in the newly constructed building for which an obstruction was created by the Principal.
(5) That mark-sheets were kept locked in the Almirah on the day when students had come to the College to collect the mark-sheets, as a result the students turned violent thereby causing damage to the property of the College resulting in financial loss and also disrepute to the College.
(6) That relevant documents were not provided for audit of the accounts of the years 2006-07, 2007-08 and 2008-09. Further wrong protest was made that the audit of the accounts was done. Furthermore an amount of Rs.1,87,910/- was sought to be realized towards audit-fee, which was neither paid nor intimated to the management during 1999 to 2009, as a result of which demand notice was issued for recovery as arrears of land revenue.
(7) That the academic progress report of the Teacher and the Form of the Agreement (Contract of Service) with Principal and Teacher was not presented before the Chairman as per the mandate of the Regulation under Ordinance XLII(2) Schedule I and II.
(8) That without an information to the Management a police complaint was made against one of the Senior-most Teacher of the College, which brought the Institution to disrepute.
(9) That there were various complaints made by Class-III and Class-IV employees including Teaching Staff, regarding arrogant and vindictive behavior of the petitioner and that on false recommendations of the petitioner services of two employees were terminated, which was disapproved by the Vice-Chancellor.
(10) That cashbook of maintenance and non-maintenance fund of the college and vouchers of the College account from 2003 fee collection account prior to 2.3.2009, Management Account from 2000 and Student's fund Account from 2001 was not found in the Almirah. As a result, the audit could not be conducted as directed by the Committee of Management.
(11) That without permission of the Chairman, sale of the property of the College was ordered by the petitioner, which upon being found against the interest of the College was canceled by the Chairman.
(12) That in spite of various directions the petitioner neither returned nor made available the documents for the purposes of enabling the audit of the account.
(13) That Insurance fee was charged from students but the premium was neither paid nor Insurance fee collected was deposited in the college. As a result, an Insurance claim preferred by one Smt. Archana Singh was denied on a false ground that for insurance the age of student should be between 16 to 25 when in fact under the Group Insurance Scheme for students, the eligibility for Insurance is up to 30 years. The denial of claim of insurance amounted to misuse of powers and position as a Principal. Further the petitioner failed to maintain absolute integrity, sincerity, loyalty and exhibited lack of devotion to duty, etc. (14) That in spite of the directions, the petitioner did not regularly come to the Institution to enable completion of the enquiry."
8. Petitioner submitted a reply to the charge-sheet. Thereafter enquiry was conducted by Sri Anand Prakash Srivastava, who submitted an inquiry report thereby finding the charges proved. Consequently, on 08.11.2010, a show cause notice was issued by the Chairman of the Managing Committee calling upon the petitioner to show cause as to why on the basis of the proven charges, she should not be removed from service. The show cause notice was accompanied with the enquiry report. The petitioner, on receipt of show cause notice, through her letter dated 15.11.2010 requested for further time to submit reply and also prayed for supply of certain documents. Finally, on 07.12.2010, the petitioner submitted a reply to the show cause notice. In her reply dated 07.12.2010, in addition to challenging the findings recorded by the enquiry officer, she claimed that there existed no Governing Body, as provided under the Ordinances of the University of Allahabad, therefore, the initiation and conclusion of the disciplinary proceedings was without jurisdiction.
9. On 13.01.2011, the Governing Body of the College met. The meeting was attended by:
10. In the aforesaid meeting the proposed order of punishment passed by / on behalf of Appointing Authority was circulated to all the members including the petitioner, who was also invited to attend the meeting, as a Member of Governing Body. In the meeting, four alternative punishment orders were considered, however, on the suggestion of the Nominee of the Vice-Chancellor, the 4th alternative punishment was adopted for being awarded to the petitioner, which read as under:-
"Continuing her on the post of Principal, her administrative and financial power may be kept in abeyance for a further period of six months and she may be provided (sic) to improve her relation with the teaching and non-teaching staff and promote academic atmosphere in the College."
11. While approving the 4th alternative punishment, a warning was given that in case the petitioner does not improve her behavior with the teaching and non-teaching staff of the college, and the academic atmosphere of the college does not improve and she does not gain the confidence of the college, the matter would be placed before the Governing Council after six months for consideration of adoption of the other alternative punishments, namely, removal from the post of Principal, or reversion to the post of Teacher, or Compulsory retirement from service.
12. The petitioner has not specifically challenged the decision taken by the Governing Body of the College in its meeting dated 13.01.2011.
13. After the aforesaid decision of the Governing Body, a meeting of the Governing Body / Committee of Management was called for. The proposed date of the meeting was 29.7.2011. One of the agenda for the meeting was as follows:
" To consider the improvement of conduct of Dr. Sobha Srivastava, Principal, K.P. Training College, in the matter of disciplinary proceeding against her as proposed in the meeting of C.M.O in 13-Jan-2011."
14. Pursuant to the meeting held on 29.07.2011, the Chairman, Committee of Management of the College, took a decision to adopt the alternative punishment of compulsory retirement.
15. The petitioner has challenged the order dated 29.07.2011 by means of Writ Petition No. 45607 of 2011.
16. We have heard Sri Ashok Khare, Senior Advocate, assisted by Sri Ram Kaushik Advocate, for the petitioner, Sri Gautam Baghel Advocate for the Allahabad University-respondent Nos. 1 to 3, and Sri Ravi Kiran Jain, Senior Advocate, assisted by Sri M.P. Srivastava for the respondent Nos. 4 and 5.
17. Sri Ashok Khare, in support of his submissions, which we shall note later, placed before us the Ordinances framed by the University of Allahabad that were notified by Notification dated 09.02.2008. The relevant Ordinances, and its clauses, which were relied on by Sri Khare in support of his submissions, are being reproduced below:-
"ORDINANCE XXXV: CONSTITUENT COLLEGES (Under Clauses (1),(2) and (3) of Statute 31, read with clause (k) of section 27) ORDINANCE
1. For the purposes of this Ordinance, unless the context requires otherwise:-
(i) "College" means a Constituent College;
(ii) "Governing Body" means the Governing Body of the Society and the College;
(iv) "Memorandum" means the Memorandum of Association of the Society, as set forth in the Form for the same in the SCHEDULE;
(v) "Principal" means the Principal of the College;
(vi) " Rules" mean the Rules of the Society, as set forth in the Form for the same in the SCHEDULE;
(viii) "Society" means the Society, registered under the Societies Registration Act, 1860, and recognized by the University as the body exercising responsibility for exclusively maintaining and developing and exclusively managing, supervising and administering the affairs of the College, through the Governing Body.
2.(a) Every College, not being a College maintained by Government, shall be maintained and developed by a Society, which shall also, subject to the provisions of sub-clause (f) of clause 3, manage, supervise and administer the affairs of the College, and shall fulfil the other conditions laid down by, or specified in, this Ordinance (including the SCHEDULE) and the other instruments:
Provided that the Society shall not maintain or manage any institution other than the College and the College shall not be affiliated, or otherwise associated, with any other University, institution or authority for conducting any course or study, or for any other purpose, and shall not organise or offer instruction in courses of study other than those approved for it by the University:
Provided further that in the case of a College maintained by Government--
(i) the functions of the Society shall vest with Government;
(ii) all references to the Society in this Ordinance (including the SCHEDULE), shall be construed, except where otherwise required by the context, or otherwise specified or provided for, as references to Government; and
(iii) the requirement of the preceding proviso, that the Society shall not maintain or manage any institution other than the College, shall not apply.
(b) The conditions governing the admission of the College to the privileges of the University shall be such as are prescribed by or under, or entailed in, this Ordinance (including the SCHEDULE) and the other instruments:
Provided that the said conditions may be amended, and further such conditions may be prescribed, by, or under, this Ordinance and the other instruments:
Provided further that if the said conditions are not acceptable to any College, the University may terminate the admission of such College to the privileges of the University.
(c)The University shall have the power to cause inspections or visitations to be made of the College and to enlarge, curtail, suspend or withdraw any of its privileges, or to determine altogether its admission to the privileges of the University, and where the circumstances in the College are, after inquiry, found to be prejudicial to the interests of the College or its students or of the University, or to the academic or public interest, to take such other action as it may deem fit or as may be provided for by this Ordinance (including the SCHEDULE) and the other instruments.
(d) The endowment funds provided by, or on behalf, of the College and pledged with the Registrar under the provisions of the Statutes in force immediately before the commencement of the Act (hereinafter in this Ordinance referred to as "the endowment funds"), shall continue to be so provided and shall be deemed to have been pledged with the Registrar upon such commencement and shall, subject to the provisions of the proviso to sub-clause (j) of clause 15, not be alienated as long as College continues to exist as such.
(e) The additional endowment funds, required to be provided under serial number (iv) of sub-clause (e) of clause 15 (hereinafter in this Ordinance referred to as "the additional endowment funds") shall be invested, pledged with the Registrar and maintained, or alienated, in the same manner as specified for the endowment funds in sub-clause (d).
(f) The income from the endowment funds and additional endowment funds, referred to in sub-clause (d) and (e), shall be exclusively applied for the maintenance of the College.
3. (a) The provisions of the Memorandum of Association and the Rules of the Society, as set forth in the Forms for the same in the SCHEDULE, shall apply to all Colleges and shall be integral to this Ordinance;
Provided that the said provisions shall not apply to a College maintained by Government, except to the extent specified in this Ordinance.
(b) The Society, which shall consist of not less than fifteen founder-members (including the Chairperson), and also the ex officio members referred to in sub-clause (d) of clause 5, shall be constituted in accordance with, or under, the provisions of the Memorandum and the Rules;
Provided that no founder-member of the Society, including any successor to such founder-member, shall be an employee of the College, or a member of the Executive Council, the Academic Council or the Finance Committee, or an officer or the Dean of College Development or the Controller of Examination, of the University.
(c)Subject to the provisions of this Ordinance (including the SCHEDULE) and the other instruments, and the conditions of the grant of the Government or the University Grants Commission to the College, the Society shall have the power to do all things and acts necessary and incidental to the objects specified in sub-clause (a) of clause 2, and, without prejudice to the generality thereof, to exercise the powers and perform the functions and duties and do other things, in particular, as are specified in clause 4 of the Memorandum.
(d) No change shall be made in the constitution, powers, functions and duties of the Society, and in the Rules, except with the prior approval of the Executive Council, and no such change shall be approved by the Executive Council except if it is in accordance with the provisions of the SCHEDULE and of the Statutes, the Ordinances and the Regulations:
Provided that this sub-clause shall not apply to changes in the membership of the Society in the normal course, under the provisions of the Ordinance, the Memorandum and the Rules, but any such change, at any time, shall be intimated in writing, as soon as possible after the same has taken place, by the Chairperson of the Governing Body, through the Principal, to the Registrar.
(e) The funds of the Society shall consist of the components specified in clause 8 of the Memorandum, and the terms and conditions governing the application of such and the incurring of expenditure therefrom, and the extent of the liability of the members of the Society in respect of any loss or damage arising from the administration or application of the funds of the Society or for any damage or deterioration in any movable or immovable property of the Society shall be as specified in clauses 9 and 10 of the Memorandum.
(f) All the rights of the Society, and the authority to exercise all the powers thereof, shall be vested in the Governing Body, which shall be constituted in accordance with the provisions of sub-clause (a) of clause 5, and shall administer, direct and control the affairs of the Society and of the College, and perform other functions and duties, in accordance with, and subject to, the provisions of the Ordinance, the Memorandum and the Rules and the other instruments.
(g) In case the Governing Body deems it expedient to amend (whether by way of addition, omission or other alteration) the purpose for which the Society is established or any other clause of the Memorandum, the same shall be done in accordance with the procedure laid down in Section 12 of the Societies Registration Act, 1860:
Provided that no such amendment shall be made, except in conformity with the provisions of this Ordinance (including the SCHEDULE), and the Act and the other instruments, and except with the prior approval of the Executive Council.
(h) The Governing Body may at any time amend any of the Rules:
Provided that no such amendment shall be made as is not in conformity with the provisions of this Ordinance (including the SCHEDULE), and the Act and the other instruments:
Provided further that no such amendment shall come into force, except after the approval thereof by the Executive Council.
(i) The Provisions of sub-clause (b) to (h) shall not apply to a College maintained by Government, but the Governing Body of such College, constituted under the provisions of sub-clause (a) of clause 5, shall administer, direct and control the affairs of the College, in accordance with, and subject to, the provisions of this Ordinance and the other instruments.
4.(a) Each College that stood admitted to the privileges of the University on the date of the commencement of the Act, shall submit to the Registrar, as soon as possible after the commencement of this Ordinance, a statement giving the details of-
(i) the property, assets and endowments pertaining or belonging to, or assigned to, or held for or on behalf of, the College, and any encumbrance (including mortgage and collateral or other pledge), trespass or other encroachment thereon;
(ii) the position of the funds and accounts of the College, including details of outstanding loans (and the interest thereon), unadjusted advances and undischarged liabilities (including pledges); and
(iii) the list, as on the date of the commencement of the Act, of the approved teaching and non-teaching posts in the College (including vacancies) and of the regular employees of the College serving on the said posts;
(b) In respect of each College referred to in sub-clause (a), not being a College maintained by Government, the Society, Trust or other organization having (whether in its own name or in the name of College) ownership, possession, power, control or custody of the property, assets and funds held, endowed or wholly or partly applied for the benefit of the College, or pertaining or belonging to the College, and exercising responsibility for the maintenance and development of the College and for the management, supervision and administration of the affairs thereof, immediately prior to the commencement of this Ordinance, shall within a period of three months of such commencement, take all necessary steps-
(i) to constitute the Society, in accordance with the Memorandum and Rules set forth in the SCHEDULE, and register the same under the Societies Registration Act, 1860;
(ii) to transfer all its rights, whether proprietary or custodial, over all of the property, assets and funds (including endowments pledged with the Registrar under the rules applicable to the College before the commencement of the Act), held, endowed or wholly or partly applied for the benefit of the College, or pertaining or belonging to the College, and of the possession and control thereof, to the Society; and
(iii) to ensure that the process of the constitution and registration of the Society, and the transfer to the Society of all the rights and of the possession and control of all the property, assets and funds, specified in serial number (ii), is completed within a period of six months of the said commencement:
Provided that if there is a genuine difficulty in the immediate transfer of any parcel of the real estate forming part of the said property, or of any construction or structure thereon or elsewhere, to the Society, the same shall, pending final transfer, be assigned to the Society on lease free of charge, subject to the condition that such lease shall not be determined, and the said parcel or construction or structure, or any portion thereof, shall not be resumed or otherwise alienated.
(c)In respect of each College referred to in sub-clause (b), the Principal shall, as soon as possible after the registration of the Society, submit to the Registrar a certified copy each of the Certificate of Registration, the Memorandum and the Rules.
5.(a) The Governing Body shall consist of the following members--
(i) the Chairperson and eight other persons, not being employees of the College or the Principal of any other College, nominated by the founder-members of the Society from amongst themselves, or, in the case of a College maintained by Government, nominated by Government;
(ii) three persons nominated by the Vice-Chancellor, one each from panels of names drawn up for the purpose, separately, by the Academic Council and the Executive Council, and one from amongst serving or former Professors of the University;
(iii) one person of eminence in academic or public life, not being a person associated with or in the service of the University or the Society, nominated by the Vice-Chancellor:
Provided that in the case of a College maintained by Government, such person shall not be associated with, or in the service of, the University or Government;
(iv) three University Recognized Teachers of the College, by rotation in the order of seniority, of whom one shall be a teacher with a regular service of less than ten years:
Provided that a teacher with regular service of less than ten years, who completes the period of ten years of such service after entering office as member, shall, nevertheless, continue as member for the remainder of his term of one year; and
(v) the Principal, who shall ex officio be the Secretary of the Governing Body.
(b) All nominations under serial number (i) to (ii) of sub-clause (a) shall be reported to the Executive Council.
(c)The term of office of the members of the Governing Body under serial number (i) to (iii) of sub-clause (a) shall be three years and under serial number (iv) thereof shall be one year.
(d) In the case of a College not maintained by Government, the members of the Governing Body, other than the members under serial number (i) of Sub-clause (a), shall, for the duration of their membership of the Governing Body, be ex officio members of the Society.
(e) A person shall be disqualified for being chosen as, and for being, a member of the Governing Body if he or his relative accepts any contract for the supply of goods or services to, or for the execution of any work for, the College, or accepts any remuneration for any work in or for the College:
Provided that nothing in this sub-clause shall apply to--
(i) the payment of salary or other remuneration or allowance to a member of the Governing Body under serial numbers (iii) and (iv) of sub-clause (a), or to such relative of any member of the Governing Body as is an employee of the College;
(ii) the payment of travelling, halting or other allowance to any member of the Governing Body or to a relative of such member.
(f) The provisions in respect of the disqualification of members of the Governing Body, further to those set out in sub-clause (e), and of the vacation of office by such members, shall be as may be prescribed by, or under, the Memorandum and the Rules.
(g) If any question arises whether any person has been duly chosen as, or is entitled to be, a member or office-bearer of the Governing Body, or whether the Governing Body is duly constituted, the matter shall be referred to the Vice-Chancellor whose decision thereon shall be final,
(h) Subject to the provisions the Statutes, the Ordinances and the Regulations, the Governing Body shall exercise the powers and perform the functions and duties laid down by this Ordinance, the Memorandum and the Rules:
Provided that the provisions relating to the appointment, by the Governing Body, of a Treasurer and a Finance Sub-Committee (under sub-clause (a) of clause 6 of the rules) and a Bursar (under clause 11 of the Rules), shall not apply in the case of a College maintained by Government.
(i) Without prejudice to the generality, of the provisions of sub-clause (h), the Governing Body shall---
(i) strictly observe the provisions of the Statutes, Ordinances and other instruments in respect of the admission, teaching, examinations, residence, welfare and discipline of students, or any aspect thereof; and
(ii) through the Principal, make available to the University such of the buildings, libraries and laboratories of the College, along with their equipment and appurtenances, and also the services of such of its teaching and other staff, as may be necessary for the purposes of conducting the University Examinations.
(j) The requirements specified in serial numbers (i) and (ii) of sub-clause (i) shall be deemed to be integral to the conditions governing the admission of the College to the privileges of the University, referred to in sub-clause (b) of clause 1.
(k) The Governing Body may, by a resolution, specifying reasons, recommend the creation of a new post or the abolition of an existing post of teacher, or the assignment of such to another subject, and such resolution shall be forwarded by the Principal to the Registrar, for being referred, with the concurrence of the Vice-Chancellor, to the Academic Council, which may reject the same or accept it wholly or in a modified form.
(l) The decision of the Academic Council to accept the resolution, referred to in clause (k), wholly or in a modified form, shall be placed for confirmation before the Executive Council, and upon such confirmation shall be forwarded to the University Grants Commission for approval and sanction, or in the case of a College maintained by Government, to the Principal for further action by Government."
18. On the strength of the aforesaid Clauses of Ordinance XXXV, Sri Khare argued that every College is required to be maintained and developed by a Society and that such Society would not maintain and/or manage any Institution other than the College. He submits that all the rights of the Society, and the authority to exercise all the powers thereof, are vested in the Governing Body, which shall be constituted in accordance with the provisions of Sub-Clause (a) of Clause (5), and shall administer, direct and control the affairs of the Society and of the college, and perform other functions and duties, in accordance with and subject to, the provisions of the Ordinance, the memorandum and the Rules and the other instruments. Sri Khare pointed out that Clause (5) of Ordinance XXXV provides for the constitution of the Governing Body. He submitted that in the case of K.P. Training College, there is no exclusive society that manages and runs the college. By citing paragraphs No. 4, 5 and 6 of the counter affidavit filed on behalf of the College he contended that there is just one society, namely, Kayastha Pathshala, Prayag which not only runs and administer the K.P. Training College but also other educational institutions like:
(i) CMP Degree College, Allahabad;
(ii) K. P. Inter College, Allahabad;
(iii) Kulbhaskar Ashram P G College, Allahabad;
(iv) Kulbhaskar Ashram Inter College, Allahabad;
(v) K.P. Girls Inter College, Allahabad;
(vi) K.P. Convent School (English Medium), Allahabad;
(vii) K.P. Nursery School (Hindi Medium), Allahabad.
19. Sri Khare also referred to the letter dated 30.10.2010, written by the Registrar, University of Allahabad, so as to suggest that the Governing Body was not in existence till 30.10.2010, as the University itself had directed the Principal of the College to constitute a College- Society and a Governing Body as per the Ordinance XXXV, Clause (5) (a) of the University of Allahabad. The contents of the letter dated 30.10.2010 as sent by the Registrar to the University of Allahabad are being reproduced below:-
"Prof. J.N. Mishra Registrar No:- C.C.I.H./2010/3007 Dated:- 30.10.2010 To The Principal, K.P. Training College, Allahabad.
Sub: Nomination of members for the Governing Body of the College-regarding.
Madam, I am directed to inform you that the Hon'ble Vice-Chancellor has been pleased to nominate the following persons in the Governing Body of your college as per schedule to the Ordinance XXXV of the University of Allahabad.
1. Academic Council Panel Nominee:- Prof. G.K. Rai, Anc. History Deptt, A.U. 2.Executive Council Nominee:- Dr. M. Massey, Principal, E.C.C. 3.V.C. Panel: Serving or Retd. Prof.:-Prof. A.R.N. Srivastava (Retd.) George Town, Allahabad. 4. V.C. Panel: Academic/Public figure:- Sri Anugrah Narayan Singh (MLA), Mumfordganj, Allahabad.
It is, therefore, requested to kindly constitute the College Society and Governing Body as per the Ordinance [schedule XXXV clause (5)(a)] of the University of Allahabad at your end and send the certified copies of By-laws of the Society to undersigned at the earliest for the necessary action in the matter."
20. Sri Khare, therefore, contended that in absence of a properly constituted college -society, as also a Governing Body, the entire action against the petitioner right from the stage of suspension, framing of charge sheet, holding of enquiry and consequential order of punishment was without jurisdiction and void. Laying emphasis on Clause (4)(b) of the Ordinance XXXV, Sri Khare contended that the time limit to constitute a Society in accordance with the Memorandum and the Rules set forth in the Schedule, and for transfer of all rights over all the property, assets and funds held for the benefit of the College to the Society, was three months from the date of commencement of the Ordinances provided that if there is a genuine difficulty in the immediate transfer of any parcel of the real estate forming part of the said property, or of any construction or structure thereon or elsewhere, to the Society, the same shall, pending final transfer, be assigned to the Society on lease free of charge, subject to the condition that such lease shall not be determined, and the said parcel or construction or structure, or any portion thereof, shall not be resumed or otherwise alienated. Sri Khare further submitted that in the case of K.P. Training College, there is no separate demarcation of the properties of the College. He contended that the Society (Kayastha Pathasala Prayag) is the owner of the property, which runs not only the K.P. Training College but also several other Colleges. According to him neither the Society nor its Governing Body was constituted in accordance with provisions of the Ordinances, as such it was incompetent to exercise disciplinary powers over its employees, teachers or Principal of the College.
21. Sri Khare further relied on the provisions of Ordinance XLII which provides for the conditions of service of the Teachers of the Constituent Colleges. The relevant clauses of Ordinance XLII namely, Clause (1)(i),(ii),(iv) and Clause (7), which were cited by him, are being reproduced below:
" 1. For the purposes of this Ordinance, except where the context otherwise requires---
(i) "College" means a Constituent College;
(ii) "Governing Body" means the Governing Body of the College;
(iv) "teacher" means a teacher of the College, appointed on the recommendation of a regular Selection Committee and serving, in whole-time capacity, on an approved post, and includes the Principal.
7.(a) Where-
(i) a teacher is detained in custody for a period exceeding forty-eight hours, it shall be his duty to inform the College of the same at the earliest available opportunity;
(ii) a case against a teacher in respect of any criminal offence is under trial, it shall be his duty to inform the College of the same as soon as he comes to know about it; or
(iii) a teacher has been convicted for an offence, and sentenced upon such conviction to a term imprisonment exceeding forty-eight hours, it shall be his duty to inform the College of the same forthwith, and any failure on the part of the teacher to so inform the College shall be regarded as misconduct, and shall render him liable for disciplinary action on that ground alone.
(b) The provisions of sub-clause (h) of clause 6 of Ordinance XXXV, in respect of suspension, shall also apply where a disciplinary proceeding is contemplated or is pending against a teacher, or a case against him in respect of any criminal offence is under investigation, enquiry or trial.
(c) A teacher shall be deemed to have been placed under suspension by an order of the Governing Body---
(i) with effect from the date of his detention, if he is detained in custody for a period exceeding forty-eight hours;
(ii) with effect from the date of his conviction for an offence, if, in the event of such conviction, he is sentenced to a term of imprisonment exceeding forty-eight hours, in case he is not already under suspension in connection with his prosecution for such offence, and such suspension shall continue till the conclusion of disciplinary proceedings in the matter:
Provided that the period of forty-eight hours shall be computed, in respect of a case referred to in serial number (i) from the commencement of the detention, and in respect of a case referred to in serial number (ii) from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
(d) Where a teacher has been convicted for an offence involving moral turpitude, the Governing Body shall be entitled to institute disciplinary proceedings against him, upon considering a report of the Chairperson of the Governing Body in the case of the Principal, or the Principal in the case of any other teacher, to that effect, and he shall be liable to be dismissed from service in consequence thereof.
(e) Where a teacher is, upon conviction for an offence, sentenced to any term of imprisonment, the Governing Body shall be entitled to institute disciplinary proceedings against him and award such penalty, including dismissal or removal from service, or termination of services, as it may deem appropriate after considering the recommendations of the enquiry in the matter.
(f) An order of suspension made under the provisions of sub-clause clause (h) of clause 6 of Ordinance XXXV or of sub-clause (b), or deemed to have been made under the provisions of sub-clause (c), shall continue to remain in force until it is modified or revoked by the Governing Body:
Provided that the Governing Body, on the recommendation of the Review Committee constituted for the purpose, shall review such order of suspension before the expiry of ninety days from the date thereof, and pass orders either extending or revoking the suspension;
Provided further that subsequent reviews shall be made before the expiry of the extended period of suspension, and the extension of suspension shall not be for a period exceeding one hundred and eighty days at a time, except in extraordinary circumstances to be recorded in writing by the Governing Body.
(g) A teacher shall, during the period of his suspension, under the provisions referred to in sub-clause (f), be entitled to get subsistence allowance in accordance with the relevant provisions of the Financial Rules of the Government of India, as amended from time to time, which shall mutatis mutandis apply to the matter.
(h) Subject to the provisions of this clause, the grounds of misconduct of a teacher, leading to disciplinary proceedings, shall inter alia include wilful neglect of duty, breach of any of the terms of the contract of service, academic dishonesty, dishonesty connected with the examinations of the University, submission of false documents or information, failure to disclose or communicate to the College and the University such information as is obligatory on the part of the teacher, under the provisions of the Statutes, the Ordinances or the Regulations, to so disclose or communicate, sexual harassment, as defined in clause (XXV) of Rule 4, of the Rules under Ordinance L, and scandalous conduct or conduct bringing the College or the University into disrepute.
(i) The provisions of Rules 70,71,74,76, and 77 of the Rules, prescribed by the Rules under Ordinance L, shall mutatis mutandis apply to the conduct and procedure of disciplinary proceedings under the provisions of this clause.
(j) The Governing Body may, where it is of opinion that the circumstances do not warrant the dismissal or removal from service, or the termination of the services, of a teacher, in pursuance of disciplinary proceedings under the provisions of this clause, pass a resolution, specifying reasons, inflicting a lesser punishment, including retiring him compulsorily from service, recording a censure, reprimand or warning in his service record, recovery from his pay of the whole or part of any pecuniary loss caused by him to the College or the University by misrepresentation, negligence or breach of orders, reducing his pay or withholding increments of his salary, or both, whether for a specified period or otherwise, with or without cumulative effect or adverse effects on his pension, depriving him of his pay during the period of his suspension, if any, etc.
(k) A teacher may be removed from service, in accordance with the provisions of sub-clauses (j) and (k) of clause 6 of Ordinance XXXV, on grounds of incompetence or physical or mental unfitness, not being a case of such disability as does not disentitle the teacher from appointment, or continuation, as such under the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995, as amended from time to time.
(l) The provisions of sub-clause (k) of clause 6 of Ordinance XXXV shall also apply to cases of the termination of the services of a teacher under the provisions of this clause:
Provided that the provisions of the said sub-clause (k), and of this clause, shall not apply to an order of compulsory retirement of a teacher after he attains the age of fifty years or of the termination of service of a temporary teacher, notwithstanding that such order is based on any charge, if such order does not disclose on its face that it was passed on such basis.
(m) Where, immediately before the order of dismissal or removal from service or the termination of the services of a teacher under the provisions of this clause, such teacher was under suspension, and such order is set aside or declared or rendered void in consequence of any proceedings under the Act, the Statutes or the Ordinances, or otherwise, and the appropriate functionary or body of the College decides to hold a further enquiry against him, the suspension order shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or termination of services.
(n) All decisions of the Governing Body, under this clause, to dismiss or remove teachers from service, or terminate their services, shall require the prior approval of the Vice-Chancellor, and all other penalties awarded to teachers under this clause shall be intimated to the Vice-Chancellor.
(o) A teacher dismissed from service on grounds of misconduct shall not be employed again, in any capacity, in the College and the University, including any institution maintained by it, and in the other institutions admitted to the privileges of the University."
22. In addition to above, Sri Khare submitted that the order of compulsory retirement was otherwise also not sustainable in law as prior to passing of the order no show cause notice or opportunity of hearing was given to the petitioner even though the order took into consideration the conduct of the petitioner subsequent to the submission of enquiry report. He submitted that in absence of an enquiry into the alleged misconduct of the petitioner, which was post submission of the enquiry report, the order of compulsory retirement stood vitiated being in violation of the principles of natural justice, as also the provisions of Rules 70, 71, 74, 76 and 77 of the Rules, prescribed by the Rules under Ordinance L.
23. Thus, in nutshell, the submissions of Sri Ashok Khare, on behalf of the petitioner, are two-fold: (a) the disciplinary proceedings were carried out without jurisdiction as there was neither a duly constituted college-society nor a governing body, as mandated by the Ordinances of the University; and (b) the order of compulsory retirement was passed in violation of the principles of natural justice, as no opportunity of hearing was given to the petitioner even though conduct of the petitioner, post submission of the inquiry report, was taken into consideration.
24. Before we proceed to notice the submissions made by the learned counsel for the respondents it would be useful to examine the pleading of the respondent no.4 on the constitution of the college-society and the governing body. With regards to the constitution of the college-society, the counter affidavit does not dispute that there is no exclusive society for the college concerned. Rather it is admitted that there is one society namely, Kayastha Pathshala Prayag, which runs and manages a number of educational institutions in the city of Allahabad. Paras 5 & 6 of the counter affidavit in writ petition no.45607 of 2011, sworn by Sri Anand Prakash Srivastava, on behalf of respondent no.4, are being reproduced below:
"Para 5-That as per the provisions, the Governing Body of the Society, authorises the President for nominating the Committee of Management of various educational institutions run and managed by the Society. This system is being followed from time of its inception, as a result of which there has never been any dispute regarding the constitution of Committee of Management in the history of Kayastha Pathshala and it has been smoothly functioning and managing the affairs of the respective institutions.
Para 6-That the Society in aid of constitutional responsibility of the Government for spreading literacy and educating to the people of this country and as per the object of its bye-laws, is running the following educational institution in the city of Allahabad-
(i) CMP Degree College, Allahabad;
(ii) K. P. Inter College, Allahabad;
(iii) Kulbhaskar Ashram P G College, Allahabad;
(iv) Kulbhaskar Ashram Inter College, Allahabad;
(v) K.P. B.Ed. College, Allahabad;
(vi) K.P. Girls Inter College, Allahabad;
(vii) K.P. Convent School (English Medium), Allahabad;
(viii) K.P. Nursery School (Hindi Medium), Allahabad."
25. With regards to the existence and constitution of the Governing Body of the college, it would be useful to refer to the statements made in paragraphs 8, 52, 54 and 55 of the counter affidavit (supra), the relevant extracts of which are being reproduced below:
"Para 8- That as per convention the report was submitted by the Chairman before the General Body of the Society recommending the names of the various members of the Governing Council, which was duly approved and the list of duly constituted Governing Council was forwarded to the Allahabad University.....
Para 52-.....However, it is submitted that it is absolutely incorrect to state that there is no Governing Body of K.P. Training College. As per Schedule to Ordinance XXXV of the University of Allahabad, immediately after taking over, the new Management nominated its representative as a member of the Governing Council and it started functioning along with the ex-officio members provided under Schedule. Since in spite of the repeated reminders the Vice-Chancellor did not provide the name of their nominee, Management of C.M.P. Degree College, which is also a constituent college run by Kayastha Pathshala had to file a writ petition no.31577 of 2010 seeking writ of mandamus commanding the University authorities to send the names of their nominee which was duly mandated by the High Court, consequently the University sent the names of their nominee for K.P. Training College. A copy of the said letter nominating University Representative is being filed herewith and marked as Annexure No. CA 8 to this affidavit. Notices were regularly sent to the University nominees and there well informed as would be apparent from the Resolution of Committee of Management. One of the nominee of the University, Prof. A.R.N. Srivastava was present in both the meeting and since the allegation of Bias were alleged against the Management his opinion was sought on priority and was acted upon, it was only on account of Prof. A.R.N. Srivastava opinion that she was futher given opportunity to improve her conduct.....
Para 54-................However, the impugned order under the challenged has been passed by the Governing Body duly formed, by including Prof. A.R.N. Srivastava, the nominee duly appointed by the Vice-Chancellor, University of Allahabad. The Annexure No.16 of the writ petition is not admitted. It is further submitted that when the matter came up before the court by that time, the name of nominees of the University were not received by various Committee of Management. However if the allegation of the Petitioner is accepted there will be complete chaos because all the actions and decisions taken by the Committee of Management which are throughout being honored by the University will become redundant and there will be no administration in the Institution. For the latches of the University, Management cannot be allowed to suffer. All the correspondences are being made by the University in the name of the Chairman, Committee of Management of respective institution.........
Para 55-..........The Governing Body duly constituted by the Management of the Institution even prior to the nominee appointed by the Vice-Chancellor vide order dated 30.10.2010 and thereafter always remain in existence and was duly recognized by the University of Allahabad.....".
26. From the counter affidavit it is, therefore, clear that K.P. Training College is not run, administered and managed by a society as contemplated by the Proviso 1 to sub clause (a) of clause (2) of Ordinance XXXV of the University of Allahabad. Under the Proviso 1 to sub clause (a) of clause (2) of Ordinance XXXV of the University of Allahabad it is mandated that the Society shall not maintain or manage any institution other than the College. Whereas, paragraphs 5 and 6 of the counter affidavit disclose that the College-Society namely, Kayastha Pathshala Prayag runs, manage and administer several institutions other than the K.P. Training College. There is nothing in the counter affidavit to show that the former Society (Kayasth Pathshala Prayag), which managed the K.P. Training College, established a new separate Society thereby transferring all the College property to it within the time allowed by the Ordinance. It is noteworthy that Clause (4) of the Ordinance XXXV provides for certain conditions that are to be fulfilled by the College, which stands admitted to the privileges of the University. Sub clause (b) of Clause (4) of the Ordinance XXXV provides that the Society having ownership, possession, power, control or custody of the property, assets and funds held, endowed or wholly or partly applied for the benefit of the College, and exercising responsibility for the maintenance and development of the College and for the management, supervision and administration of the affairs thereof, immediately prior to the commencement of the Ordinance, to take all necessary steps--(a) to constitute the Society, in accordance with the Memorandum and Rules set forth in the Schedule; (b) to transfer all its rights over all of the property, assets and funds applied for the benefit of the College, to the Society; and (c) to ensure that the process of the constitution and registration of the Society, and transfer to the Society of all the rights, etc., is completed within a period of six months of the commencement of the Ordinance. Thus, from the record it is clear that no college-society was constituted as mandated by the provisions of Ordinance XXXV of the University of Allahabad.
27. As regards the existence and constitution of the Governing Body in accordance with the provisions of the Ordinances, the stand in the counter affidavit is to the effect that the members of the Governing Body were duly nominated by the Chairman of the Kayasth Pathshala Prayag, which were approved by the General Body of the Society, and sent to the University. The Vice-Chancellor of the University nominated four persons in the Governing Body of the College, which was communicated to the Principal of the College vide letter dated 30.10.2010 of the Registrar. A perusal of the letter 30.10.2010 indicates that after nominating four persons, as members of the Governing Body, the Principal of the College was requested to constitute the College -Society and the Governing Body as per the provisions of the Ordinances of the University of Allahabad. However, there is nothing on record to show that the college-society was constituted in accordance with the provisions of the Ordinance. So far as the constitution of the Governing Body is concerned, under Clause (5)(a)(i) of Ordinance XXXV, the Chairperson and eight other persons of the Governing Body are to be nominated by the founder- members of the Society. "Society", as per Clause (1) (viii) of Ordinance XXXV, unless the context requires otherwise means the Society, registered under the Societies Registration Act, 1860, and recognised by the University as the body exercising responsibility for exclusively maintaining and developing and exclusively managing, supervising and administering the affairs of the college through the Governing Body. Therefore, unless there is constitution of a college-society exclusively for the college, there can be no constitution of a Governing Body as per clause (5) of Ordinance XXXV. Since we have already found that there was no exclusive college-society, the existence of a Governing Body, as per the provisions of the Ordinances, is precluded.
28. Sri Ravi Kiran Jain, senior counsel, appearing for the respondents 4 & 5 submitted that the petitioner had no right to challenge the jurisdiction of the Governing Body/ Committee of Management of the Society to take disciplinary action against her. He submitted that the relation of Master and Servant between the existing Governing Body and the petitioner was since before the admission of K.P. Training College to the privileges of the University of Allahabad and this relationship continued even after K.P. Training College was admitted to the privileges of the University of Allahabad, which became a Central University by Act No. 26 of 2005. He submits, that the power to take disciplinary action continued to remain impliedly vested in the existing Governing Body, which was duly constituted as per the bye-laws of the existing society i.e. Kayasth Pathshala Prayag. In the alternative, he submitted that even if the Constitution of the Society, or the Governing Body, was not in conformity with the provisions of the Ordinances, still the disciplinary action taken by it is protected by the de facto doctrine. In support of his contention reliance was placed on an apex court's decision in the case of Gokaraju Rangaraju Vs. State of Andhra Pradesh, reported in AIR 1981 SC 1473. With regards to the contention of Sri Khare that no notice was given prior to the passing of the order of compulsory retirement, Sri Ravi Kiran Jain submitted that no opportunity was required inasmuch as in the meeting dated 13.1.2011 it was specifically decided that the punishment of compulsory retirement, removal from service and reversion to the post of teacher, would be kept for consideration after six months. He contended that since the conduct of the petitioner was not found to have improved over the next six months, therefore, the punishment of compulsory retirement, which was under consideration, was imposed. Therefore, he submits, there was no violation of the principle of nature justice. Sri Ravi Kiran Jain further contended that since the petitioner had not challenged the decision of the Governing Body dated 13.01.2011, she, therefore, can neither challenge the findings of the Enquiry Officer nor the decision of the Governing Body to consider imposition of the other alternative punishments after six months.
29. After having considered the respective submissions of the parties and having gone through the record, we are of the view that the points that arise for adjudication in this case, are as follows:
(a) whether the disciplinary action taken against the petitioner was without jurisdiction for the reason that there was no College- Society, as also a Governing Body, constituted and in existence, as per the provisions of the Ordinances of the University of Allahabad; and
(b) whether the petitioner was entitled to a fresh show cause notice, as also a fresh enquiry, before passing of the order of compulsory retirement.
30. Before examining the question of jurisdiction of the existing Management of the College to take disciplinary action against the petitioner, it would be useful to note that there is no material on record to suggest that the present set of office-bearers of the Society are usurpers or were not validly elected. In paragraph 5 of Writ Petition No. 19812 of 2010 it has been stated as follows:
"That the affairs of abovestated institution are being managed by registered society known as K.P. Trust through its governing body as defined under the ordinance XXXV of the ordinances of the University."
In paragraph 8 and 9 of Writ Petition No. 19812 of 2010 it has been stated as follows:
"8. That in December 2008 the elections of the said K.P. Trust were conducted and a duly elected management took over the charge in managing the affairs of the K.P. Training College.
9. That after the newly elected managing committee took over the charge the new president namely Shri T.P. Singh, who had personal animosity with the outgoing president. Hence he decided to reverse the decisions taken by the previous managing committee. This included the appointment and continuation in office of the petitioner as Principal of the college, who had administrative and financial powers in her hand of the institution. The new president wants his "YESMAN" to adorn the seat of principal of the college."
In paragraph 5 and 6 of Writ Petition No. 45607 of 2011 it has been stated as follows:
"5. That the affairs of the Institution are being managed by registered society known as "K.P. Trust" through its governing body in terms of the Ordinance XXXV of the Ordinances of the University.
6. That it is submitted, that till date to the best of the knowledge of the petitioner, there does not exist any governing body of the Institution as prescribed under the Ordinance of the University of Allahabad Act, 2005."
31. From the aforesaid statements, it is clear that there was no dispute that the office bearers of the committee of management of the existing society i. e. Kayasth Pathshala Prayag, were validly elected in terms of its existing bye-laws. The challenge by the petitioner is to the effect that neither the college-society nor the governing body was constituted in terms of the Ordinances framed under the University of Allahabad Act, 2005.
32. Now, it is to be examined whether on account of non-constitution of a "Society" exclusive for the K.P. Training College, as also a Governing Body, as per Ordinance XXXV of the Ordinances of the University of Allahabad, the Management Body was deprived of its power to take disciplinary action against its employees. The answer to this question would depend on the existence of Master-Servant relationship between the existing Management Body and the petitioner. For this purpose it is necessary to examine whether the provisions of the Ordinances framed under the University of Allahabad Act, 2005, preserved the existing Master-Servant relationship.
33. Before coming to that it would be important to note that the petitioner was under employment as Principal of K.P. Training College since prior to the enactment of University of Allahabad Act, 2005. In paragraph 4 of the writ petition no.45607 of 2011, the petitioner has stated as follows:
"4. That the petitioner has been working on the post of Principal since 10.2.1999. It is further noteworthy to mention herein that on 14.7.2005 K.P. Training College (hereinafter referred to as the "college" became a constituent College of Central University of Allahabad and is governed by the Ordinance prescribed by the Central Government for University of Allahabad."
Thus, there is no dispute that the petitioner was under employment of K.P. Training College since prior to the enactment of the University of Allahabad Act, 2005, therefore, there existed Master -Servant relationship between the management of K.P. Training College and the petitioner since prior to the enactment of the University of Allahabad Act, 2005.
34. Whether the relationship of Master-Servant was preserved by the Ordinances framed under the University of Allahabad Act, 2005, is a question, which needs to be examined. In this regard Ordinance XLII of the Ordinances of University of Allahabad, which relates to CONDITIONS OF SERVICE OF TEACHERS OF THE CONSTITUTENT COLLEGES, is relevant. It is noteworthy that as per clause (1) (iv) of Ordinance XLII "teacher" means a teacher of the College, appointed on the recommendation of a regular Selection Committee and serving, in whole-time capacity, on an approved post, and includes the Principal. Clause (4) and Sub Clause (a) of Clause (6) of Ordinance XLII are useful for the purpose and are being reproduced below:
" 4. (a) The written contract specified sub-clause (a) of clause 6 of Ordinance XXXV (hereinafter in this Ordinance referred to as "the contract of service") shall be in the form set out in SCHEDULE I to this Ordinance, and every teacher shall sign the contract of service before he enters upon his duties, or as soon as possible thereafter:
Provided that the contract of service shall be signed on behalf of the College by the Chairperson of the Governing Body or, if so authorised by the Governing Body, by the Treasurer of the Governing Body.
(b) A teacher in the service of the College on a temporary post, who is appointed to a permanent post under the provisions of sub-clause (a) of clause 3, or in a teacher serving as Lecturer, who is granted the designation of Reader, under the provisions of clause 6 of Ordinance XXIX, in continuation with his service as Lecturer, shall not be required to enter into a new contract of service and instead the change in the nature of his appointment shall be appropriately recorded in the initial contract of service, under the signatures of the teacher and the Chairperson of the Governing Body, or in the circumstance referred to in the proviso to sub-clause (a), the Treasurer of the Governing Body, in the presence of the Registrar or a functionary deputed by him for the purpose.
(c) In the case of a teacher in service as such on the date immediately preceding the commencement of the Act and continuing in service upon such commencement, the contract of service with the College, or the authoritative document or instrument specifying the terms and conditions of his appointment and service, as the case may be, subsisting on the said date, shall continue to be in force, subject to the provisions of the Act, the Statutes, the Ordinances and the Regulations, and shall be deemed to have been modified in accordance with such provisions, pending the execution of the contract of service set out in SCHEDULE I to this Ordinance.
(d) The terms and conditions of the service of the teacher, including emoluments, entitlements or privileges as to leave, leave salary, allowances and terminal benefits, obligations as to the duties to be performed by him, and the disciplinary rules and procedures applicable to him, shall be such as may be prescribed by the Statutes, the Ordinances and the Regulations, as amended from time to time, and the rules made, or directions issued, from time to time, by the authorities of the University and by the Governing Body of the College, in matters in respect of which they are empowered, by the Act, Statutes, Ordinances and Regulations, to make such rules or issue such directions.
(e) The terms and conditions, referred to in sub-clause (d), shall be integral to the contract of service and shall include such other conditions as may be embodied in such contract of service.
6. (a) A teacher shall at all times maintain absolute integrity and devotion to duty, and shall obey, and to best of his ability carry out, the lawful directions of any functionary or body of the College, to whose authority he is, while the contract of service is in force, subject, under the provisions of the Act, the Statutes, the Ordinances and the Regulations and the decisions of the Executive Council or the Vice-Chancellor in respect of matters in which they are empowered by, or under, the said provisions to take such decisions, in respect of the organisation and conduct of instruction or teaching and the examinations of the students, and the discipline, welfare and residential supervision of the students, and shall take part in such other work in the College, as may be required of, or entrusted to him in connection with academic, co-curricular, extracurricular and extension activities and the corporate life of the College."
35. Likewise it would be useful to reproduce Sub Clause (a) and (b) of Clause 6 of Ordinance XXXV of the Ordinances of the University of Allahabad, which are as follows:
"6. (a) The provisions in respect of the manner of appointment, emoluments and other terms and conditions of service of the employees of the College, not being a College maintained by Government, shall be prescribed by the Ordinances and Regulations in that behalf, and every such employee shall be appointed under a written contract, prepared in triplicate, and one copy each thereof shall be forwarded to the Registrar, lodged with the College and furnished to the employee concerned:
Provided that in case of a College maintained by Government, such appointments shall be made by Government, which shall also determine the said conditions of service, but the qualifications for the post of Principal and other teachers of such college shall be as prescribed by the Ordinances and Regulations.
(b). On and from the date of commencement of the Act, every person employed in the College immediately before the said date shall hold his service in the College by the same tenure, at the same remuneration and upon the same terms and conditions, and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters, as he would have held the same if the Act had not been passed, and shall continue to do so unless and until his employment is terminated or until such tenure, remuneration and terms and conditions are duly altered by the provisions of the Ordinances:
Provided that if the alteration so made is not acceptable to such employee, his employment may be terminated by the College in accordance with the terms of the contract with the employee or, if no provision is made therein in this behalf, on payment to him by the College of compensation equivalent to three months' remuneration in case of permanent employees and one month's remuneration in the the case of other employees:
Provided further every person employed before the said date, pending the execution of a contract under sub clause (a), shall be deemed to have been appointed in accordance with the provisions of a contract consistent with the provisions of this Ordinance and other Ordinances and the Regulations."
36. A conspectus reading of sub-clause (c) of Clause (4) of Ordinance XLII and the 2nd Proviso to sub clause (b) of Clause (6) of Ordinance XXXV would go to show that in the case of a teacher who had been continuing in service since prior to the commencement of the University of Allahabad Act, 2005, the contract of service with the College, as subsisting on the said date, continued to be in force albeit subject to the provisions of the Act, the Statutes, the Ordinances and the Regulations, and would be deemed to have been modified in accordance with such provisions, pending the execution of the contract of service set out in SCHEDULE I to the Ordinance XLII. Likewise, Sub Clause (a) of Clause (6) of Ordinance XLII provides that a teacher shall at all times maintain absolute integrity and devotion to duty, and shall obey, and to the best of his ability carry out, the lawful directions of any functionary or body of the College, to whose authority he is, while the contract of service is in force, subject.
37. Accordingly, with regard to the teachers, which includes the Principal, who were in employment of the Constituent Colleges since prior to the commencement of the University of Allahabad Act, 2005, as also the Ordinances, the contract of service between the existing Management and the teacher / Principal remained intact; although the contract of service stood modified by the provisions of the Act, the Statutes, the Ordinances and the Regulations made thereunder. If the contract of service survives, the Master-Servant relationship is maintained.
38. Thus, we find that the non-constitution of a college-society, as also a governing body, in terms of Clauses (4) and (5) of Ordinance XXXV did not obliterate the Master-Servant relationship between the Management of the College and the petitioner. This, however, does not preclude the University to take action against the concerned College, which does not abide by the conditions attached to the admission of the College to the privileges of the University. It is noteworthy that under Clause (k) of section 27 of the University of Allahabad Act, 2005, the Statutes, subject to the provisions of the Act, may provide for the conditions under which college and institutions may be admitted to the privileges of the University and the withdrawal of such privileges. Clause (n) of Sub Section (1) of Section 29 of the Act provides that the Ordinances may provide for all other matter which by the Act or the Statutes, are to be or may be, provided for by the Ordinances. Clause (2) of Statute 31 provides that matters relating to the constitution of the management, the powers of the Vice-Chancellor to issue directions to, and to enforce his orders against, the management, the conditions for the continuance, enlargement and withdrawal of the privileges of Constituent colleges and the grant to and withdrawal from them of the autonomous status shall be prescribed by the Ordinances. Clause 21 of Ordinance XXXV of the Ordinances of the University of Allahabad provides as under:-
"21. (a) The continuance of the privileges of the College shall depend on continued fulfilment of the conditions of admission to the privileges of the University, referred to in sub-clause (b) of clause 1, and such privileges may be suspended or withdrawn, wholly or in part, by the Executive Council, after consulting the Academic Council, if it is satisfied, after considering any explanation furnished by the Governing Body, that such College has ceased to fulfil the said conditions or that it persists in making default in the performance of its duties under the provisions of this Ordinance (including the SCHEDULE) and the other instruments, or in the removal of such defect or defects in its working as may have been pointed out under the said provisions.
(b) The Executive Council may, if it is satisfied, after such inquiry as it may think fit to make, that---
(i) the affairs of the College are being managed in a manner prejudicial to the interests of the College, the teachers or students thereof or the University, or to the public interest; or
(ii) teaching is being conducted in the College in a manner prejudicial to the standards of teaching in the University or, appoint to the regularly constituted Governing Body of the College such number of additional members, not being more than one-half of the total number of members of the Governing Body, for such period as it may think fit but not exceeding two years on any one occasion:
Provided that the person appointed as an additional member shall hold office as such for the period specified in the order of his appointment, but the Executive Council may recall him at any time and appoint any other person to fill the vacancy caused by such recall."
39. A perusal of Clause 21 of Ordinance XXXV indicates that the continuance of the privileges of the College shall depend on continued fulfilment of the conditions of admission to the privileges of the University, referred to in sub-clause (b) of clause 1, and such privileges may be suspended or withdrawn, wholly or in part, by the Executive Council, after consulting the Academic Council, if it is satisfied, after considering any explanation furnished by the Governing Body, that such College has ceased to fulfil the said conditions or that it persists in making default in the performance of its duties under the provisions of this Ordinance (including the SCHEDULE) and the other instruments, or in the removal of such defect or defects in its working as may have been pointed out under the said provisions.
40. In Clause 23 of Ordinance XXXV, it is provided as follows:-
"23. (a) The Governing Body, with the concurrence of the Society or, in the case of a College maintained by Government, of Government, may apply for the permission of the Executive Council to be released from admission to the privileges of the University, in order to seek affiliation with any other University or for any other good and sufficient cause.
(b) An application under sub-clause (a) shall be accompanied by the reasons for seeking such permission and by a statement specifying the arrangements proposed for the continuing studies of such students of the College as may be entitled to appear for the examinations of the University of the current, or any subsequent, academic year for the courses of study in which they are enrolled.
(c) In the case of a College not maintained by Government, the statement referred to in sub-clause (b) shall also be accompanied by---
(i) an up-to-date statement of accounts of the College, including its outstanding dues of the College towards the University Grants Commission and the University; and
(ii) an assurance (duly supported by an appropriate affidavit) of the founder-members of the Society to the effect that the release of the College from the privileges of the University shall not liquidate any outstanding liability of the College towards the University Grants Commission and the University, including any liability arising from any irregularity pointed out in any audit report for the period prior to such release, and that the Society shall not be wound up, except after the full discharge of all such liabilities, and that the Society (and any successor thereof) shall be responsible for such full discharge.
Provided that in the case of a College maintained by Government, the said assurance shall be on behalf of Government, to the effect that it shall discharge any such liability in full, and shall not be required to be supported by an affidavit.
(d) The Executive Council shall not grant any application under sub-clause (a), except upon being satisfied in respect of the arrangements and provisions referred to in sub-clause (b) and the assurance referred to in sub-clause (c), and in the case of a College not maintained by Government, except after consultation with the University Grants Commission:
Provided that the grant of any such application shall be reported to the University Grants Commission."
41. A perusal of Clause 23 indicates that the Governing Body has an option of being released from admission to the privileges of the University, in order to seek affiliation with any other University or for any other good and sufficient cause. This indicates that if, for some reason, the Governing Body does not wish to comply with the stringent conditions of the Ordinance, it may seek for release from admission to the privileges of the University.
42. A conspectus reading of the provisions examined and discussed above would go to show that the Managing Body of the College, by whatever name it be called, did not cease to exist or function. As the contract of service survived, the Master-Servant relationship between the Managing Body of the College and its employees, which includes the Principal, remained intact. Since power to draw disciplinary proceedings is implicit in the contract of service, or is a natural concomitant of Master-Servant relationship, the existing Managing Body, by whatever name it be called, was neither rendered non-existent nor powerless only because a new college-society was not constituted in accordance with the provisions of the Ordinances. Further, from the record we find, the University had nominated its nominees to the Governing Body of the College, and one of its nominee had participated in the disciplinary proceedings. We are, therefore, of the view that the Managing Body of the College was well within its jurisdiction to draw disciplinary proceedings against the petitioner. Even otherwise, the Managing body of the College is not a usurper inasmuch as the University has been corresponding with it, and its nominee has been participating in its meetings. The Managing Body is in control of the affairs of the College. Accordingly, any action taken by them, in assumed authority of their office, for the assumed welfare of the College, would be protected by the de facto doctrine, recognized and accepted by the apex court, in the case of Gokaraju Rangaraju (supra), as follows: "The doctrine is now well established that the acts of the Officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure". For the reasons stated above, the objection of the petitioner that the Governing Body had no jurisdiction to draw disciplinary proceedings against her is rejected.
43. With regards to the validity of the order of compulsory retirement, it is necessary to mention that under sub-clause (j) of Clause 7 of Ordinance XLII, a wide discretion has been provided to the Governing Body in respect of choice of punishment to be imposed. However, this discretion has to be exercised in a manner not being arbitrary or unjust. In the present case, we find that in the meeting dated 13.01.2011, the Governing Body had punished the petitioner by depriving her of the administrative and financial power attached to the post of Principal for a further period of six months with opportunity to improve her relation with the teaching and non-teaching staff and to promote academic atmosphere in the college. This punishment was coupled with a warning that if she did not improve her behavior with the teaching and the non-teaching staff of the college and improve the academic atmosphere of the college and that she does not gain the confidence of the Management, then after six months the Governing Council would consider all the other alternative punishments like removal from the post of Principal, reversion from the post of teacher and compulsory retirement.
44. In our view, once the Governing Body had come to the conclusion of keeping the administrative and financial powers of the petitioner in abeyance for a further period of six months, then it was not open for the Management to consider the other three alternative punishments for the reasons mentioned in the minutes of the meeting dated 13.01.2011. Once the Governing Body in its meeting had adopted the fourth alternative punishment, after holding an enquiry, and upon consideration of the enquiry report, it could not not have reverted back to any of the other three alternative punishments that were proposed on the same inquiry report, but not adopted. The disciplinary proceedings that commenced with the service of the charge sheet culminated with the award of the fourth alternative punishment. The decision of the Governing Body to monitor the functioning of the petitioner for a period of six months, for the purpose of taking a final decision on a penalty, which was earlier proposed but not imposed, amounted to converting a permanently appointed Principal into a probationer, which is not permissible in law. Even otherwise, if such liberty is given to the Management, then the Management may, without conducting any fact finding enquiry, on its own ipse dixit terminate the services of a Principal by making allegations that may not be substantiated on record.
45. From a perusal of the impugned order dated 29.07.2011 it is clear that the management took into consideration subsequent events, which were not the subject matter of earlier enquiry. In such a situation it was incumbent on the management to give fresh opportunity of hearing to the petitioner with respect to the subsequent charges. As admittedly no opportunity of hearing was given, with respect to the conduct post submission of the enquiry report, we are of the view that the order dated 29.07.2011 stood vitiated for violation of the principles of natural justice and as such it cannot be sustained in law.
46. In the result, the writ petition No. 45607 of 2011 succeeds and is hereby allowed. The order dated 29.07.2011 (Annexure No.1) is hereby quashed and set aside. The petitioner shall be permitted to work as Principal of the College with full administrative and financial powers. She will be paid the entire salary and allowances as Principal of the College with effect from 29.07.2011, and the current salary after reinstatement. It shall, however, be open for the Management to draw fresh disciplinary proceedings against the petitioner in accordance with law. The writ petition No. 19812 of 2010 is, however, dismissed, as having become infructuous. There is no order as to costs.
I agree.
(Hon'ble Manoj Misra, J.) (Hon'ble Sunil Ambwani,J.) Order Date :- 23.03.2012 Sunil Kr Tiwari