Hon'ble Rajan Roy,J.
Delivered by Hon'ble Rajan Roy, J.
Challenge herein is to the order of the Vice Chancellor, Chhatrapti Sahuji Maharaj University, Kanpur passed under the proviso to Section 35(2) of the State Universities Act, 1973 rejecting the proposal of the petitioner for removal of the respondents No.2 & 3 from its service.
The Vice Chancellor had earlier rejected the proposal vide his order dated 22.03.2010, which was challenged by the petitioner in Writ Petition No.16350 of 2010, which was decided vide judgment and order dated 16.04.2010. The said judgment was challenged before the Supreme Court by the Vice Chancellor but the special leave petition was dismissed on 16.08.2010 leaving the legal issue open for consideration, if raised. As a consequence, the judgment dated 16.04.2010 passed in the aforesaid writ petition has attained finality between the parties subject to the above.
Paragraphs-23, 28, 29 and 30 of the judgment dated 16.04.2010 are as under:
"23. Keeping in view of the fundamental rights given to the minority institutions, Section 35 (2) of the UP State Universities Act, 1953 provides for a limited enquiry in the matter of approval of the orders of punishment passed by the Committee of Management of minority institutions. This enquiry is confined only to the satisfaction, that the procedure prescribed for holding enquiry has been followed. The Vice Chancellor has a very limited discretion in the matter. Unless he is satisfied, that the procedure prescribed in the Statutes or in the Regulations for prescribing punishment has been followed, he will not enter into the other issue such as the validity of the Committee of Management, the nature of the charges, proportionality etc. In such cases, the Vice Chancellor must remind himself that he has limited powers of approval and must allow the minority institutions to regulate its own administration and should be free to exercise the discretionary powers to regulate the conduct of the teachers. The word 'recognition' is defined in the law Lexicon by P. Ramanatha Aiyar II Edn. Reprint 2007 (1627) to imply something more than acquiescence, something done by the Government as for instance by expeditious of service, Jodi etc. Mere collection of road cess is not recognition. Section 78 (4) of the Indian Evidence Act uses the word recognition to the proof of official documents and which means formal acknowledgement as conveying approval or sanction.
28. On the aforesaid opinion, we are of the view that the Vice Chancellor has not only acted illegally and has erred in exercise of his statutory powers in refusing to exercise his powers under Section 35 (2) of the UP State Universities Act, 1973, but that he has also violated the fundamental rights of the Christ Church College Society, Kanpur, a Christian Minority Society, to establish and administer the educational institution guaranteed under Article 30 (1) of the Constitution of India.
29. The petitioners have made out the grounds taken in the writ petition and have established that the present case is an exception to the general rule of relegating the petitioner to avail alternative remedies provided under the Act.
30. The writ petition is allowed. The order of the Vice Chancellor, Chhatrapati Sahu Ji Maharaj University, Kanpur dated 22.3.2010 is set aside. The order shall not be given effect to. The Vice Chancellor will reconsider the report of the Governing Body of the Christ Church College, Kanpur vide its proposal dated 25.2.2010 along with material produced therewith for approval of the termination order strictly in accordance with the powers vested in him under Section 35 (2) of the UP State Universities Act, 1973. He will consider the matter afresh in accordance with the observations and directions made by us preferably within six weeks from the date a certified copy of this order is produced before him."
The relevant extract of the order of the Supreme Court dated 16.08.2010 referred above is being quoted hereinbelow:
"After hearing learned counsel appearing for the petitioner as also learned counsel appearing for respondent no.1, we are not inclined to interfere with the impugned order particularly in view of the actions taken by the respondent no.1 against their own teachers. But the legal issue which is decided by the High Court is, kept open and if at any point of time, any such issue is raised again, the same shall be considered by the appropriate court, in accordance with law.
With the aforesaid observations and directions, the Special Leave Petition is disposed of."
The factual matrix of the case is as under:
The respondents No.2 & 3 were teachers in the petitioner college, which is a minority institution. The respondent No.2 was head of the department of Urdu, whereas the respondent No.3 was head of the department of Sociology in the same college.
A charge-sheet was issued to the said respondents on 13.08.2009 inter alia communicating the decision of the Governing Body to initiate departmental proceedings against them under Chapter XVIII of the Statutes of Kanpur University read with Section 49(o) of State Universities Act, relating to certain acts of misbehaviour and misconduct committed on 02.04.2009 and onwards, whereby the said respondents along with certain outside elements were alleged to have been a party to unauthorised and unlawful acts of disgruntled outside elements against the Christ Church College Society, Kanpur and Christ Church College, Kanpur thereby unlawfully interfering in the affairs of institution. It is said that a mob of 10-15 persons along with the said respondents (for short 'delinquents') forcefully entered the college threatening other employees, who were present in the college campus, for dire consequences and shouted slogans against the established authorities of the college. The delinquents broke open locks of the principal office, the accountant office, teacher-staff room etc. and replaced them with their own locks. Again on 13.07.2009, delinquent respondent No.3 entered the college campus and went inside the Principal office, where the Principal, City Magistrate and C.O. Kotwali, Kanpur were present, and used unparliamentary language against the Principal. Respondent No.2, on the same date, instigated certain persons, which resulted in a lot of chaos outside the Principal office and acted in an undisciplined manner. On 17.07.2009, the respondent No.3 held a press conference and issued press notes maligning the college authorities, certain other allegations were also mentioned in the charge sheet. Such conduct was not expected of them against the college, in which they were themselves serving.
The delinquents were required to reply to the charge sheet, either jointly or separately, by 25.08.2009, to the Supervisor of the Departmental Disciplinary Committee, (for short 'disciplinary committee') constituted by the college Governing Body and also to indicate, if they wanted to be heard in person and to call any witnesses for examination in their defence. The delinquents were further required to appear before the disciplinary committee on the dates, which were to be intimated to them and when they may put up any other requirement, they need for affording them opportunity to defend themselves. It was categorically mentioned that if the two charged teachers did not submit any reply against the charges, it would be presumed that they had nothing to say in writing at that stage, however, they may put in their oral defence or even written submission of defence subsequently, if the disciplinary committee permitted.
The receipt of the charge sheet is not disputed by the delinquents.
On 24.08.2009, the delinquents wrote to the chairman of the disciplinary committee raising objections with regard to the right of the Governing Body headed by Dr. Pervez E. Deen to manage the college. The documents and list of witnesses with reference to the charges contained in the charge sheet were also demanded, so that they may submit an effective reply. However, there was no specific denial by them of any of the charges levelled against them, though, it was said that it was a bald charge sheet, therefore, it was void ab initio.
On 25.08.2009, the Secretary of the Governing Body communicated the date for holding the inquiry by disciplinary committee, i.e. 30.08.2009, to the delinquents and asked them to appear before the Committee on the said date.
The delinquents submitted another letter alleged to be dated 25.08.2009, by which, they, inter alia challenged the constitution of disciplinary committee as also the right of the Governing Body to manage the college and also demanded documents and list of witnesses, which, according to them, had not been supplied to them with the charge sheet.
It is alleged by the delinquents that on 26.08.2009 they submitted a letter addressed to Principal/ Secretary of the College raising serious objections regarding the constitution of the disciplinary committee and the inclusion therein of Sri S.P. Lal, Sri Danial Singh and Sri Vijay Kumar.
On 30.08.2009, the meeting of the disciplinary committee took place but the delinquents did not appear before it in spite having been intimated about the said date. The disciplinary committee conducted the inquiry on the said date, examined the evidence, documentary as well as oral.
On 30.08.2009 itself, the delinquents were informed by the convener of the disciplinary committee that as they had not appeared before it on 30.08.2009, the Committee after recording evidence and taking on its record, the charge sheet, the written statement of defence and the other papers received from the Secretary of the college, had adjourned the meeting to 01.09.2009. The delinquents were requested to appear before the Committee on the said date.
On 01.09.2009, the Secretary of the Governing Body informed the Chairman of the disciplinary committee that Sri Daniel Singh had expressed his inability to participate in the proceedings on account of his ill health, therefore, Dr. Balwant Singh, Reader, Department of Chemistry had been nominated in his place as a member of the said Committee.
Thereafter, on 17.09.2009 again the meeting of the disciplinary committee took place, but the delinquents did not appear before it on the said date also.
On 05.10.2009, a letter was issued to the delinquents by the Secretary of the Governing Body mentioning that as they had not appeared before the Committee on the date fixed for inquiry, in spite of notice, the inquiry committee completed its proceedings of examination of witnesses, admission of documents and other relevant documents in this connection, which were produced before the inquiry committee and marked as exhibits and annexures, pages 1 to 404, given in the index of the contents of the proceedings, a copy of which was being sent to them so that whatever defence they may intend to submit in respect of disproving the charges levelled against them should be submitted latest by 12.10.2009 or earlier. The letter also mentioned that if nothing was received from them till 12.10.2009, it would be presumed that they had nothing to say and the proceedings along with finding would be submitted to the Governing Body for its action.
In response thereto, the delinquents submitted a letter dated 12.10.2009 to the Secretary stating therein that one week's time for submission of reply to the inquiry proceedings running into 405 pages was wholly inadequate and as they had been able to study only 167 pages of the said proceedings, two weeks' further time may be granted to go through the documents and submit their reply by 28.10.2009.
Thereafter, no formal communication was received by the delinquents from the petitioner but the fact is that till 28.10.2009, no action was taken against them and on 28.10.2009, a letter was served upon them, which reads as under:
"The undersigned has received communication from the Chairman, Departmental Disciplinary Enquiry Committee, that the adjourned meeting of the Enquiry Committee shall take place on October 30, 2009, at 3.00 p.m. in the Principal's Office. The Chairman has indicated that the entire developments to date, right from the date of the receiving of the copy of the Proceedings by the two charged teacher-employees named above, with the requirement that they may use the statements of the witnesses to state anything further to what they have submitted in their written statements earlier, shall be considered. The Committee shall proceed further in the light of the developments from the date of the issue of the letter dated October 5, 2009, sent with a copy of each of the entire Proceedings to the two charged teacher-employees.
The Chairman has desired that the two charged teacher-employees named above, be given notice to be present before the Enquiry Committee to assist it and make written/ verbal submission in their defence, if they wish to, for the consideration of the Committee. The Chairman has also desired that if they still continue to be absent, the Enquiry Committee shall submit its Findings to the charged teacher-employees and the entire Proceedings including the Findings to the College Governing Body."
On 29.10.2009, delinquents submitted a letter to the Secretary of the Governing Body, for the first time, denying the charges levelled against them and contending that they had raised preliminary objections, vide their letter/ reply dated 24.08.2009, which had not been considered and decided till then, therefore, the entire proceedings were vitiated. It was also contended that they had been deprived of the right to cross-examine the prosecution witnesses and produce the defence witnesses apart from adducing the written and oral evidence, it was submitted that after disposal of the preliminary objections, they might be granted opportunity to cross-examine the prosecution witnesses and lead their documentary and oral evidence. Apart from the above, no submission was made in the said letter/ reply with regard to the charges levelled against them, the evidence collected and supplied to them, both documentary as well as oral.
On 30.10.2009, the disciplinary committee again met and conducted inquiry proceedings. As mentioned in the finding submitted to the Governing Body, on the said date, the committee arranged for the presence of all the witnesses to be cross-examined, only with a view to ascertain if both the charged teachers/ employees had any valid defence to the charges levelled against them, but they did not appear to avail this opportunity to cross-examine the witnesses also. Therefore, further evidence was closed on the said date.
The charged employees did not appear despite having been given several notices through peon book, postal and telephonic communication to attend the proceedings.
On 23.11.2009, the disciplinary committee met and examined the entire evidence including all the statements of witnesses, documents produced and exhibits and annexures placed before it and recorded its findings. The said findings were submitted before the Governing Body.
On 21.12.2009, a show cause notice was issued to the delinquents along with findings/ inquiry report so as to enable them to represent against the same. In response thereto, the delinquents submitted their reply on 10.01.2010 making wild allegations without pointing out any perversity in the findings of the disciplinary committee.
On 22.02.2010, the Governing Body passed the resolution to terminate the services of the delinquents employees with immediate effect.
The said resolution was reported to the Vice Chancellor for further action under proviso to Section 35(2).
On 25.02.2010, the Secretary of the Governing Body responded to the letter of the delinquents dated 10.01.2010 that despite being given due notice of the proceedings of the disciplinary committee through peon book, speed post and phone to defend themselves, they never availed the opportunity granted to them.
On 22.03.2010, the Vice Chancellor rejected the resolution of the petitioner dated 22.02.2010, which led to the filing of the Writ Petition No.16350 of 2010, which was decided on 16.04.2010, as already referred.
Thereafter, the S.L.P. against the said judgment was also decided on 16.08.2010. Consequently, the Vice Chancellor took a fresh decision and it is the said decision dated 16.03.2011, which is under challenge in this writ petition.
Sri V.K. Singh, learned senior counsel assisted by Sri. A.D. Saunders, learned counsel for the petitioner submitted that the Vice Chancellor had exceeded his jurisdiction under the proviso to Section 35(2) of the Act of 1973. It was contended that the impugned decision of the Vice Chancellor was in violation of the judgment of this Court dated 16.04.2010. It was not open for the Vice Chancellor to delve into the validity of the disciplinary committee constituted by the Governing Body. The finding regarding denial of opportunity and non furnishing of documents/ list of witnesses was contrary to the record and was factually incorrect. Sufficient opportunity was given to the respondents to defend themselves but they did not avail the same, therefore, they cannot turn around and raise a plea of denial of opportunity.
The Vice Chancellor, under the proviso to Section 35(2) was not empowered to conduct an inquiry and invite fresh evidence or accept the same. The alleged letters pertaining to Sri Vijay Kumar, one of the member of the departmental committee, were fabricated and had been filed for the first time before the Vice Chancellor after completion of the inquiry, therefore, the same should not have been taken into consideration. All the relevant documents/ list of witnesses had been supplied to the respondents but they chose not to appear before the disciplinary committee on the dates fixed. The Vice Chancellor had ignored the record showing repeated opportunities given to the respondents to place their case and that the Vice Chancellor had been supporting the respondents, as would be evident from the fact that they were appointed examiners by him after their services having been terminated by him and directions were also issued by him to take work from them. It was clearly beyond his jurisdiction. The petitioner being a minority institution, the Vice Chancellor had acted beyond his powers. The decision was more in terms of Section 35(1) rather than Section 35(2).
Sri Anoop Trivedi, learned counsel appearing for the respondents No.2 & 3, on the other hand, submitted that his clients had been denied reasonable opportunity to defend themselves. The preliminary objection raised by them regarding illegal and malafide constitution of the disciplinary committee had never been considered nor disposed of, therefore, the entire proceedings against them were void ab initio and a nullity. A strange procedure of inquiry was adopted, where the disciplinary committee proceeded to accept the evidence both, i.e. documentary and oral, behind their back without providing the relevant documents/ list of witnesses to enable the respondents to file their reply to the charge sheet and thereafter, provided a copy of the proceedings for submission of statement of defence. Such procedure was not in accordance with the principle of natural justice and it indicated a pre-determination in the mind of the disciplinary committee to punish them and deny them a reasonable opportunity to defend themselves.
It was submitted that specific objections were raised with regard to inclusion of Sri Vijay Kumar, the convener member of the disciplinary committee, based on certain letters written by him to the respondents a few years back, wherein he had threatened them with dire consequences. The objection was specifically raised in their letter dated 26.08.2009, which was never considered by the Governing Body nor by the disciplinary committee. The inquiry by such members in the disciplinary committee vitiated the entire proceedings as no fairness was expected from such persons. It is in these circumstances that the respondents did not appear on the date fixed before the disciplinary committee. One of the other reasons for non-appearance was that the requisite documents and list of witnesses had not been supplied to them. The Vice Chancellor has passed the impugned order strictly in accordance with the provisions of Section 35(2), which does not suffer from any error.
Having heard the learned counsel for the petitioner as also the learned counsel for the respondents and having perused the records, we are of the view that the following questions arise for consideration in this writ petition:
(i) Whether the Vice Chancellor, while taking the impugned decision, has exceeded his powers and jurisdiction under the proviso to Section 35(2) of the Act of 1973?
(ii) Whether the grounds/ reasons for rejection of the resolution of the petitioner for removal of the respondents from its services as contained in the impugned decision, are perverse, contrary to records, hence unsustainable in law?
Section 35 of the Act of 1973 deals with the condition of services of teachers of an affiliated or associated college other than those maintained by government or local authority. Undisputedly, the petitioner runs a college, which is an aided minority institution and is governed by the provisions of the Act of 1973.
Section 35(2) of the Act reads as under:
"35. Conditions of service of teachers of affiliated or associated colleges other than those maintained by Government or local authority.
(1) Every teacher in an affiliated college (other than a college maintained exclusively by the State Government) shall be appointed under a written contract which shall contain such terms and conditions as may be prescribed. The contract shall be lodged with the University and a copy thereof shall be given to the teacher concerned, and another copy thereof shall be retained by the college concerned.
(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."
A bare perusal of the aforesaid provision makes it amply clear that sub-section (2) of Section 35 is applicable in the cases belonging to non-minority institutions. The proviso to the said sub-section is applicable in the cases of minority institutions referred to in clause (1) of Article 30 of the Constitution of India. It is also revealed that in the case of former any decision of the management of such college to dismiss or remove a teacher or reduce him in a rank or to punish him in any other manner shall not take effect unless it has been ''approved' by the Vice Chancellor whereas, in the case of the latter, no such ''approval' is required. All that is required is that such decision of the management shall be reported to the Vice Chancellor and it shall not be given effect to unless he is ''satisfied' that ''the procedure prescribed in this behalf has not been violated'. Thus, the scope of interference by the Vice Chancellor in such matters pertaining to the minority colleges is limited vis-a-vis non minority institutions obviously for the reason that such colleges enjoy a certain autonomy under Article 30(1) of the Constitution of India, which is required to be preserved. A conscious distinction has been made by the legislature, which has to be given its full effect.
The question, which naturally comes to mind is as to what is ''the procedure prescribed', as referred under the proviso to Section 35(2).
In this regard, reference may be made to the provisions contained in chapter XVII of the First Statute of Kanpur University. The provisions of Statutes 17.01 to 17.06 are being quoted hereinbelow:
" 17.04. (1) A teacher of an associated college (other than a Principal) may be dismissed or removed or his services terminated on one or more of the following grounds :
(a) wilful neglect of duty;
(b) misconduct, including disobedience to the orders of the Principal;
(c) breach of any of the terms of contract of service;
(d) dishonesty connected with the University or College examination;
(e) scandalous conduct or conviction for an offense involving moral turpitude;
(f) physical or mental unfitness;
(g) incompetence;
(h) abolition of the post with the prior approval of the Vice-Chancellor.
(2) A Principal of an associated college may be dismissed or removed, or his service terminated on grounds mentioned in clause (1) or on the ground of continued mismanagement of the college.
(3) ...........................
(4) ..........................
17.06. (1) No order dismissing removing or terminating the services of a teacher on any ground mentioned in clause (1) or clause (2) of Statute 17.04 (except in the case of a conviction for an offense involving moral turpitude or of abolition of post) shall be passed unless a charge has been framed against the teacher and communicated to him with a statement of the grounds on which it is proposed to take action and he has been given adequate opportunity-
(i) of submitting a written statement of his defense;
(ii) of being heard in person, if he so chooses; and
(iii) of calling and examining such witness in his defense as he may wish;
Provided that the Management or the officer authorised by it to conduct to inquiry may, for sufficient reasons to be recorded in writing, refuse to call any witness.
(2) The Management may, at any time ordinarily within two months from the date of the Inquiry Officer's report pass a resolution dismissing or removing the teacher concerned from service, or terminating his services mentioning the grounds of such dismissal, removal or termination.
(3) The resolution shall forthwith be communicated to the teacher concerned and also be reported to the Vice-Chancellor for approval and shall not be operative unless so approved by the Vice-Chancellor.
(4) The Management may, instead of dismissing removing or terminating the services of the teacher, pass a resolution inflicting a lesser punishment by reducing the pay of the teacher for a specified period or by stopping increments of his salary for a specified period not exceeding three years and or may deprive the teacher of his pay during the period, if any, of his suspension. The resolution by the Management inflicting such punishment shall be reported to the Vice-Chancellor and shall be operative only when and to the extent approved by the Vice-Chancellor."
Statute 17.06 provides that no order dismissing, removing or terminating the services of a teacher on any ground mentioned in clause (1) or clause (2) of Statute 17.04 (except in the case of a conviction for an offense involving moral turpitude or of abolition of post) shall be passed unless a charge has been framed against the teacher and communicated to him with the ground on which it proposes to take action and he has been given adequate opportunity of submitting a written statement of his defence; of being heard in person, if he so desires; and of calling and examining such witnesses in his defence as he may desire. The management is required to mention the grounds of dismissal, removal or termination. The decisions are required to be communicated to the teacher concerned and also reported to the Vice Chancellor for approval and shall not be operative unless it was approved by the Vice Chancellor. The term ''approval' appearing therein would not apply in the case of minority institutions, instead, the requirements of the proviso to Section 35(2) shall be applicable.
Thus, the procedure prescribed in the Statutes for dismissal, removal or termination of the teachers of the affiliated colleges such as the petitioner college is mentioned in the aforesaid Statute.
Apart from it, no other provision has been placed before us by the learned counsel for the respective parties.
The validity of the impugned decision is to be decided in the light of the aforesaid Statute, and the observations/ directions of this court dated 16.04.2010 in Writ Petition No.16350 of 2010 subject to the legal issues decided therein, being reconsidered, which is, with regard to the scope of Section 35(2).
The Vice Chancellor has rejected the proposal/ resolution of the petitioner on the following four grounds:
(1) Non-furnishing of requisite documents and list of witnesses in support of the charge sheet to the delinquents.
(2) Inclusion of Sri Vijay Kumar in the disciplinary committee, in spite of having knowledge of the objections raised by the delinquents based on personal animosity between them, thereby rendering the constitution of the disciplinary committee, defective.
(3) Non-application of mind with regard to mental health of Sri Daniel Singh, before including him as a member of the disciplinary committee and non-consideration of objections of the delinquents. In this regard, it was indicated that the disciplinary committee had been casually constituted.
(4) Denial of two weeks' time to the delinquents to furnish their reply to the disciplinary proceedings running into 404 pages in response to the letter dated 05.10.2009.
For the aforesaid reasons, the Vice Chancellor held that the procedure followed was not satisfactory.
Accordingly, the resolution dated 25.02.2010 was rejected and the respondents were directed to be taken back in service and to be allowed to work. However, liberty was given to the petitioner to conduct fresh inquiry after following the procedure prescribed and for taking appropriate decision against the respondents.
So far as the first ground given by the Vice Chancellor is concerned, we are of the view that after issuance of charge sheet on 13.08.2009, the delinquents were asked to furnish their written statements of defence, which they did not do nor did they appear before the disciplinary committee on 30.08.2009 in spite having been intimated about the said date. Consequently, the disciplinary committee proceeded to conduct inquiry and examine the document and oral witnesses on the said date.
The disciplinary committee again met on 17.09.2009 with intimation to the delinquents, as is evident from the inquiry report, but, again they did not appear. In this regard, the relevant extract of the inquiry report is being quoted hereinbelow:
"Despite the repeated notices/ letters/ telephonic communications on record, the two charged teacher-employees never turned up at the Proceedings on 30.08.2009 and 01.09.2009 to cross-examine the witnesses, present any statement of defence or to produce any witnesses in their own interest. The Committee observed that the non-availing of the opportunity by even Dr. P. Richards, who was present in the College on 30.08.2009 and 01.09.2009 while Dr. M. Islam was not present, was not understandable. The Committee adjourned the Proceedings till both of them were present in the college.
On 15.09.2009, the day when Dr. M. Islam returned on duty, the Enquiry Committee fixed 17.09.2009 for its next meeting, giving telephonic communication as well as notice-letter dated September 15, 2009 to the two charged teacher-employees (EXHIBIT no.13, PROCEEDINGS, pp.362-367). The two again did not attend the Proceedings.
On 05.10.2009, Enquiry Committee decided to hand over a copy each of the complete Proceedings till 17.09.2009, to the two charged teacher-employees, which were handed over to them along with a letter dated 05.10.2009, which they received duly signing receipt (EXHIBIT 14A, PROCEEDINGS, page 369). They were also issued a notice-letter dated 5.10.2009 giving them opportunity to submit any statement of defence by October 12, 2009, before the Committee submitted its Findings to the Governing Body (EXHIBIT 14, PROCEEDINGS, page 368).
On 12.10.2009, the two charged teacher-employees made a written submission dated 12.10.2009 asking for time upto 28.10.2009 to file their reply (EXHIBIT no.16, page 372). The Committee then decided to hold its next meeting on 30.10.2009 giving full opportunity to the two charged teacher-employees, as per their much belated request in their letter dated 12.10.2009, to attend the same and present their defence cross-examine the witnesses and produce any witnesses, despite their continuous failing to attend all the earlier Proceedings vide letter dated 28.10.2009 (EXHIBITS 17/17 a, pages 373-374).
On 29.10.2009, the two charged teacher employees submitted a joint written statement dated 29.10.2009 (EXHIBIT 18, PROCEEDINGS, pages 375-393).
On 30.10.2009, despite the unreasonableness of the demand of the two charged teacher-employees in their joint written statement (dated 29.10.2009 referred above), the Committee arranged for the presence of all the witnesses to be cross-examined, only with a view to ascertain if both the charged teacher-employees had any valid defence to the charges against them (PROCEEDINGS, page 25). But, the two did not appear to avail this opportunity also to cross-examine the witnesses."
As is evident from the aforesaid, the delinquents did not appear for inquiry on 30.08.2009 in spite of notice dated 25.08.2009, which read as under:-
"The Departmental Disciplinary Enquiry Committee shall meet on August 30, 2009, at 12.00 noon and subsequently at the time and date notified by the Committee thereafter.
The Departmental Disciplinary Enquiry Committee shall consider the written statement of defence dated 25.08.2009 submitted by the two charged teachers in the College office addressed no. "SOCIO/1/25/8/09 TO, DR. PARVEZ E. DEEN, SECRETARY, GOVERNING BODY, CHRIST CHURCH COLLEGE, KANPUR FROM:- DR. P. RICHARDS (&) DR. . ISLAM", and a copy of the same dated 24.08.2009 sent by speedpost by "DR. P. RICHARDS, HOD, Sociology Dept. Christ Church College KANPUR to DR. PARVEZ E. DEEN, SECRETARY, GOVERNING BODY, CHRIST CHURCH COLLEGE, KANPUR", which is being sent to the Chairman of the Departmental Disciplinary Enquiry Committee, and shall examine the evidences to prove the charges put against the charged teachers. The Committee shall provide opportunity to cross-examine the witnesses as well as to examine the witnesses which are produced by the charged teachers in their defence. The Enquiry Committee shall conduct the Proceedings according to the provisions of law, and may ask questions from the witnesses and accept the documents produced by all witnesses. The Enquiry Committee shall also provide reasonable opportunity to the charged teachers for putting up their defence against the charges, and shall also supply the copies of the statements of witnesses to the charged employee-teachers. In case the charged teachers wish to make any written/ verbal statement in their defence, the same may be recorded. The Disciplinary Enquiry Committee will decide any request from the charged teachers for supply of the copies of the documents in their defence, if considered just and reasonable by the Committee.
The charged employee teachers, i.e. Dr. M. Islam and Dr. P. Richards are required to be present for all the time on all the dates communicated to them when the Departmental Disciplinary Enquiry Proceedings are conducted by the Enquiry Committee as mentioned above."
All the relevant documents including the statement of witnesses, their names, exhibits etc. along with the inquiry proceedings running into 405 pages were handed over to the delinquents on 05.10.2009 thereby giving them an opportunity to defend themselves. In this regard, the extract of the letter dated 05.10.2009 is being quoted hereinbelow:-
"SUBJECT: DEPARTMENTAL DISCIPLINARY ENQUIRY PROCEEDINGS - CONDUCT OF REFERENCE: DETAILMENT OF DEPARTMENTAL DISCIPLINARY ENQUIRY COMMITTEE DATED 25.08.2009 Pursuant to the decision of the Governing Body, the Departmental Disciplinary Enquiry Committee started its Proceedings on 30.08.2009 with due notice to both of you, the charged employee-teachers. However, the Enquiry Committee completed its Proceedings of examination of witnesses, admission of documents, and other relevant documents in this connection which were produced before the Enquiry Committee and marked as exhibits and annexures pages 001 to 404 given in the index of the contents of the Proceedings.
One copy each of the Proceedings, as per details of the documents in para 1 above, is being sent to you respectively, in accordance with the requirements of the Departmental Disciplinary Enquiry Committee, for whatever defence you may intend to submit in respect of disproving the charges against you, latest by October 12, 2009, or earlier. If nothing is received from you till October 12, 2009, it shall be presumed that you have nothing to say, and the Proceedings along with the Findings shall be submitted to the Governing Body for whatever action it decides to take in respect of the charges against you."
In response to the aforesaid letter dated 05.10.2009, the delinquents submitted a letter dated 12.10.2009 seeking two weeks' time, i.e. 28.10.2009 for going through the voluminous document and submitting their reply to the same. Though no formal communication of such time being granted was made by the petitioner to the delinquents, yet the fact remains that no action was taken against them till 28.10.2009 thereby giving them ample opportunity to submit their reply, yet they did not do so and on 28.10.2009, another letter was served upon them intimating them about the next date of the adjourned meeting of the inquiry committee to be held on 30.10.2009, requesting them to participate therein and take such other necessary actions including making written and verbal submissions in their defence. It was specifically mentioned therein that if they continued to be evasive, the inquiry committee would submit its findings for further action. The delinquents responded vide their letter dated 29.10.2009, wherein they submitted a bald denial of the charges, for the first time, but did not submit any reply with regard to the documents supplied to them, vide letter dated 05.10.2009, nor did they raise any objection with regard to the evidence, documentary or oral as mentioned therein. In fact, they reiterated their demand for disposal of the preliminary objection raised by them regarding the constitution of the disciplinary committee.
It is relevant to point out that by this time, i.e. 05.10.2009, the delinquents had been provided all the relevant documents as also the list of witnesses, which they had demanded on 24.08.2009 and they were also given the opportunity to defend themselves in any manner they chose by filing their written or verbal submissions or examination of witnesses etc. but they did not avail of the same.
The delinquents did not appear even on 30.10.2009 on which date, all the witnesses had been called so as to enable the delinquents to examine/ cross-examine them, as is evident from the recitals contained in the inquiry report, which has already been quoted in the earlier part of this judgment, yet, they chose not to appear, thereby they did not avail opportunity provided to them to defend themselves.
The question, which arises is can they be permitted not to cooperate in the disciplinary proceedings and not avail the opportunity offered to them and then turn around and challenge the same on the ground of denial of reasonable opportunity. The answer is in the negative.
The Vice Chancellor completely failed to appreciate this aspect of the matter. The finding recorded by the Vice Chancellor that the requisite documents and list of witnesses were not supplied to the delinquents as was required, is perverse, as the same was duly furnished along with the letter dated 05.10.2009. Thereafter, ample opportunity was given to them, to submit their written submissions of defence and to cross-examine the witnesses but the delinquents did not avail the said opportunity. Therefore, no mileage can be claimed by them on the aforesaid ground.
The other ground stated by the Vice Chancellor is the inclusion of Sri Vijay Kumar in the disciplinary committee considering the personal animosity between him and the delinquents. We have gone through records of the case and we find that the objection with regard to the constitution of the disciplinary committee was raised by the delinquents, for the first time, on 24.08.2009. A perusal of the said letter indicates that the only objections raised with regard to the inclusion of Sri Vijay Kumar was that he was of the same rank. The Vice Chancellor himself in his decision dated 16th March, 2011 has rejected this objection. In the letter dated 24.08.2012, no other objection was raised by the delinquents with regard to Sri Vijay Kumar.
It is alleged by them that in their letter dated 26.08.2009, they stated certain other facts relating to their personal animosity with Dr. Vijay Kumar, and it is also alleged that certain letters written by Sri Vijay Kumar threatening them with dire consequences were annexed with the said letter dated 26.08.2009.
The averments in this regard has been made for the first time in para-12 of the supplementary counter affidavit filed by the respondents No.2 & 3, in reply thereto, the petitioners have filed supplementary rejoinder affidavit, wherein they have denied the said documents as also the receipt of the letter dated 26.08.2009.
A perusal of the impugned decision also shows that the stand of the petitioner was that the said plea, based on the aforesaid document, was raised, for the first time, by means of the written submission dated 09.10.2010, which was filed after conclusion of hearing before the Vice Chancellor. A copy of the same was provided to the petitioner only thereafter. Before the Vice Chancellor, it was contended by the petitioner that the said documents were not part of the inquiry proceedings and had never been filed during the pendency of the said proceedings and they are fabricated documents, therefore, the same should not have been taken into consideration by the Vice Chancellor.
In view of the above, as the document dated 26.08.2009 had been disputed by the petitioners and in view of the aforesaid stand of the petitioner before the Vice Chancellor, the impugned decision based thereon does not appear to be a sustainable decision. The facts in question including the veracity of the letter dated 26.08.2009 itself being disputed, the reliance placed thereon in the impugned decision is not acceptable. The genuineness of the same not having been proved, no reliance can be allowed to be placed thereupon. If the said documents were available, the delinquents should have taken the objection based thereon, at the very first instance, i.e. on 24.08.2009, but they did not do so. In fact, the letter dated 26.08.2009 does not find any mention even in the subsequent letter dated 29.10.2009, wherein also an objection was raised with regard to the constitution of the Committee. If the said letter had already been submitted, then the same would have been specifically mentioned therein. Non-mentioning of the same raises serious doubts about its authenticity.
In this context, we would like to observe that the scope of interference by the Vice Chancellor under the proviso to Section 35(2) is a very limited one. He is not expected to decide a lis between the parties by holding a trial, allowing evidence, that too fresh evidence, to be adduced before him, holding lengthy hearings involving minute scrutiny of evidence. He is only required to 'satisfy' himself as to whether the prescribed procedure has been followed or not. He is not required to 'approve' the decision as in the case of non-minority institutions nor is he expected to act as an appellate authority and sit in judgment over the decision taken, otherwise the distinction between minority and non-minority institutions under Section 35 would be rendered meaningless. In this case, the letter dated 26.08.2009 and its annexures were filed along with written submissions filed by the respondents No.2 & 3 after conclusion of hearing before the Vice Chancellor and the same have been relied, which according to us was impermissible.
From the perusal of the records, the court is of the view that from the beginning, delinquents had not been cooperating in the disciplinary proceedings and had been raising frivolous objections regarding the constitution of the disciplinary committee, possibly with a view to make out a ground subsequently to challenge the decision taken against them.
A perusal of the letter dated 24.08.2009 and the subsequent letter dated 25.08.2009 annexed as Annexure-4 to the supplementary counter affidavit reveals that all along the delinquents had been raising objections as to the entitlement of the Governing Body to manage the college in question, vis-à-vis some other body, which, according to them, was the rightful authority to run and manage the college. The said letters leave no doubt that the delinquents had some vested interest with such other body, which was also claiming management of the college. In this regard, it is relevant to refer to the earlier judgment dated 16.04.2010, wherein this issue was considered and this court, after due inquiry from the learned counsel for University, categorically held, that there was no such dispute with regard to the Governing Body in question.
The court is of the view that delinquents being employees/ that too teachers of the college, there was no valid reason for them to take sides with either of the parties in any dispute of management of the college, assuming the same existed, though in view of the judgment dated 16.04.2010, there was none. Such conduct on the part of the delinquents, coupled with the serious allegations levelled against them was quite uncalled for.
In view of the above, we find that the finding of the Vice Chancellor with regard to the constitution of the disciplinary committee, on the basis of inclusion of Sri Vijay Kumar is not sustainable.
The other ground mentioned by the Vice Chancellor is the inclusion of Sri Daniel Singh as one of the members. This ground, on the face of it, is not acceptable, for the reason that on 01.09.2009 itself, Sri Daniel Singh was substituted by another member Sri Balwant Singh. Moreover, the alleged mental health of Sri Daniel Singh had not been proved and he had recused himself from the proceedings, not on the ground of mental health, but on the ground of physical ailment relating to his back injury. In any case, after 01.09.2009, he was not a party to the proceedings, but the Vice Chancellor failed to notice this fact.
The other reason given by the Vice Chancellor that there was denial of opportunity, as two weeks' time requested by the delinquents for submitting the reply to the letter dated 11.10.2009, was not granted, is concerned, the same is also misconceived.
It appears that the Vice Chancellor has not perused the documents on record carefully and has not drawn conclusions based thereon. After issuance of the letter dated 05.10.2009 and the reply of the respondents vide letter dated 12.10.2009, the Governing Body did not take any action against them till 28.10.2009, thereby giving them an ample opportunity to file reply their response to the letter dated 05.10.2009, yet, they did not avail this opportunity. Moreover, even thereafter while submitting their letter dated 29.10.2009, they did not give any reply on merits of the charges nor did they raise any objections with regard to the disciplinary proceedings running into 405 pages, for which they had themselves sought time. This only goes to show that the respondents never intended to submit their reply and were only interested in delaying the proceedings for ulterior motives.
We are of the view that ample opportunity was given to the respondents to defend themselves and file a reply in response to the letter dated 12.10.2009 but no reply was filed by them, therefore, observations of the Vice Chancellor are absolutely perverse.
In view of the above discussion, we are of the view that so far as the first question, framed by us, is concerned, the Vice Chancellor has not exceeded his powers on the issue relating to the validity of the constitution of the disciplinary committee and other related issues are concerned, as they were germane to the satisfaction required to be recorded regarding the 'procedure prescribed' having been followed or not.
He, however, appears to have clearly exceeded his jurisdiction, in the manner in which he exercised his power, as, he virtually acted like a trial court or an appellate authority. The Vice Chancellor has failed to appreciate the distinction between Section 35(2) and its proviso forgetting that the legislature, by virtue of the proviso to Section 35(2), intended to confer a very limited role for the Vice Chancellor to perform, a role much more limited than the one contemplated in Section 35(2).
With regard to the second question, the reasons given by the Vice Chancellor for rejecting the resolution of the petitioner for removal of the respondents from their services, are not at all sustainable in the eye of law being utterly perverse, contrary to records as indicated hereinabove as, no prudent person could have arrived at such a conclusion on the basis of material on record.
In view of the above, the impugned decision dated 16.03.2011 is quashed. The resolution dated 22.02.2010 having been passed as per the procedure prescribed, the same is accordingly affirmed.
The writ petition is accordingly allowed.
Order Date :- 26.05.2014 NLY Civil Misc. Impleadment Application No.763378 of 2008 IN Case :- WRIT - A No. - 18964 of 2011 Petitioner :- Governing Body, Christ Church College Kanpur Thru' Its Secry Respondent :- V.C., Chhatrapati Sahu Ji Maharaj University Kanpur & Others Counsel for Petitioner :- A.D. Saunders Counsel for Respondent :- Neeraj Tiwari,Ankush Tandon,Ashwani,Ashwani K.Mishra,S.B.Vaish,Suresh Chand Dwivedi Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajan Roy,J.
During pendency of the writ petition, an application for impleadment was filed by certain persons but nobody appeared to press the same as such the same is dismissed for want of prosecution.
Order Date :- 26.05.2014 NLY