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C/M CHIRAUJI LAL DHARM PAL KANYA UCHCHATAR MADHYAMIK & ANR. versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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C/M Chirauji Lal Dharm Pal Kanya Uchchatar Madhyamik & Anr. v. State Of U.P. And Others - WRIT - A No. 23585 of 2007 [2007] RD-AH 10488 (7 June 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 23585  of 2007

Committee of Management,

Chiraunji Lal Dharmpal Kanya Uchchatar

Madhyamik Vidyalaya, Dataganj,

Budaun and another

Versus

State of U.P. and others

Hon'ble V.K. Shukla, J.

Committee of Management of Chiraunji Lal Dharmpal Kanya Uchchatar Madhyamik Vidyalaya, Dataganj, Budaun has approached this Court, questioning the validity of decision dated 19.04.2007 taken by Sub-Committee constituted under Section 21 of the U.P.  Secondary Education Service Selection Board Act, 1982, and communicated by the Secretary, U.P.  Secondary Education Service Selection Board vide communication dated 07.05.2007, disapproving the proposal of the Committee of Management for termination of services of respondent No. 4, Smt. Sheela Sharma.

Brief background of the case, as disclosed in the writ petition, is that in the district of Budaun, there is a recognized institution known as Chiraunji Lal Dharmpal Kanya Uchchatar Madhyamik Vidyalaya, Dataganj, Budaun. Said institution, as is suggestive by its name, is engaged in imparting education upto Intermediate level to girl students. Affairs of the said institution are run and managed in consonance with the provisions as contained under U.P. Intermediate Education Act, 1921. Institution in question is in grant-in-aid list of the State Government, and the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 are fully applicable to the said institution. Selection and appointment on the post of Principal, Lecturers and L.T. Grade Teachers is made as per provisions contained under U.P.  Secondary Education Service Selection Board  Act, 1982 and Section 21 of the said Act restricts the power of the Committee of Management before proceeding to award any punishment. In the said institution, respondent No.4, Smt. Sheela Sharma had been performing and discharging duties as Principal. Resolution was passed on 14.10.2001 for initiation of disciplinary proceedings against her and simultaneously, she was sought to be placed under suspension. Said resolution of suspension was approved by the District Inspector of Schools, Budaun under Section 16-G (7) of the U.P. Intermediate Education Act, 1921 on 04.12.2001. The suspended Principal preferred writ petition No.39165 of 2001, which was disposed of by this Court with direction to the District Inspector of Schools to hear all the parties and take appropriate decision in the matter. Thereafter, District Inspector of Schools, Budaun, heard the parties concerned and vide order dated 10.01.2002 maintained the order of suspension till enquiry proceedings were completed. Respondent No. 4 again filed writ petition No.5150 of 2002, which is still pending.  Smt. Sheela Sharma was subjected to disciplinary proceeding by issuance of charge sheet on 02.11.2001, wherein 15 charges were levelled against her. Petitioners have contended that six letters had been sent to the charged employee for submission of reply and ultimately on 08.01.2002 information was submitted by her that she had already submitted her reply to the lawyer of the Management, and copy of the same was also forwarded to District Inspector of Schools. Thereafter, next date fixed in the matter was 05.02.2002. On the said date charged employee appeared and made statement that she will not give any thing in writing, she had already submitted her reply to District Inspector of Schools on 06.03.2002. Notice was issued by Sub-Committee to the charged employee and then again no reply was given and ultimately report was submitted on 24.03.2002, holding therein that the charges stood proved. The Managing  Committee passed resolution  to terminate the services of respondent No.4. Entire papers, thereafter, for the purposes of being accorded approval, were transmitted to the U.P.  Secondary Education Service Selection Board Act, 1982 through the District Inspector of Schools. The U.P.  Secondary Education Service Selection Board constituted a Sub-Committee to hear the dispute between the petitioners and charged employee. The Sub-Committee on 07.11.2003 approved the termination of charged employee and the said action was accepted by the U.P.  Secondary Education Service Selection Board in its meeting dated 12.02.2004. Said action of U.P.  Secondary Education Service Selection Board was subject matter of challenge in writ petition no.10713 of 2004. Said writ petition was allowed on 23.03.2004 and categorical direction was given that said matter be assigned to the Sub-Committee of which Dr. Hambeer Singh and Arvind Dexit were not members. Further observation was made that Selection Board while dealing with the objection of Smt. Sheela Sharma had not recorded any finding at all. Petitioners have contended that thereafter, Sub-Committee, comprising Sri J.P. Verma, member of the Selection Board and Dr. Ajab Singh Yadav, Chairman of the said Board, was constituted. The Sub-Committee issued notices to the petitioners as well as charged employee, and hearing took place on various dates, viz. 16.09.2004. 19.07.2004, 07.07.2005, 22.07.2005, 16.08.2005 and 28.09.2005. It has been stated that the dates which have been mentioned, on every date when hearing took place only Sri J.P. Verma was present and on the last date i.e. on 28.09.2005, other member Dr. Ajab Singh Yadav, President of the Board, was present. Categorical mention was made that Dr. Ajab Singh Yadav was not present on earlier dates when hearing took place by the Sub-Committee. Orders were reserved on 28.09.2005, which is the date when the matter was lastly heard by the Sub-Committee. Thereafter, after about 19 months impugned communication has been sent, whereby proposal for termination has been disapproved. At this juncture present writ petition has been filed on facts and grounds mentioned in the body of the writ petition.

On presentation of writ petition, parties to the writ petition, request for production of relevant original record, on the basis of which impugned action has been taken, and based on the same writ petition be decided without exchange of pleadings.

On the matter being taken up on 24.05.2007 record was produced, and learned counsel for the parties were heard at length.      

Sri R.N. Singh, Senior Advocate, assisted by Sri V.K. Singh, Advocate, contended with vehemence that in the present case principle of natural justice has been violated, inasmuch as hearing had taken place by one Sub-Committee and report had been submitted by another Sub-Committee, as such procedure on the face of it contravenes and violates the principle of natural justice. Further, it has been contended that U.P.  Secondary Education Service Selection Board has totally transgressed and over stepped its jurisdiction in appreciating the evidence and then unnecessarily interfering with the impugned order of termination on mere surmises and conjectures ignoring  the finding of Enquiry Committee, as such writ petition deserves to be allowed.

Sri Ashok Khare, Senior Advocate, assisted by   Sri S.K. Srivastava, Advocate, on the other hand, contended that when on 28.9.2005, petitioner Committee of Management had given in writing that they did not want to say anything more and they had already submitted their reply, as such when matter has been heard by one Sub-Committee and the report has been submitted by another Sub-Committee, wherein one member was common, same hardly makes any difference, specially when petitioners have failed to substantiate any prejudice on account of said procedure being adopted, and in this background, submission that there is violation of principles of natural justice is of no consequence and  no interference is required on this front. On merits, it has been contended that U.P.  Secondary Education Service Selection Board is an expert body; which has the authority to examine documentary evidence of the Committee of Management of the institution, hear parties and then arrive at conclusion, and here as only minor deviation was there, qua the same punishment has been imposed, which is in the domain of the Selection Board, as such no interference is warranted.

Sri A.K. Yadav, counsel for the Selection Board and Sri K.K. Chand, learned Standing Counsel supported the stand of Sri Ashok Khare.

After respective arguments have been advanced, the first question to be adverted to, is as to whether in present case principles of natural justice has been violated? And if so what prejudice has been caused to the petitioners Committee of Management of the institution?

In order to appreciate the respective arguments advanced on behalf of the parties on this aspect of the matter, three judgments of this Court are relevant to be looked into, wherein procedure which is to be followed by the U.P.  Secondary Education Service Selection Board has been dealt with. This Hon'ble Court, in the case of Committee of Management, Shahganj, Public Inter College, Shahganj, Jaunpur and another v. U. P.  Secondary Education Service Selection Commission, Allahabad and another, (1995) 3 UPLBEC 1593 has taken the view that no strait Jacket formula is prescribed for observance of the principles of natural justice and for grant of approval on the proposal of termination of service of teachers, Commission is required to hear the concerned   teacher  as well as also take into consideration the view point of the Management. No personal hearing is contemplated in its proceedings. The view point of the Management and teacher can be examined on the basis of documents submitted by both of them. Relevant extract of the said judgment (paragraphs 15, 16 and 17) are being quoted below:

"15. On second count, the grievance of the petitioner is that the commission heard the matter on two dates i.e. 10th and  11th July, 1990. The commission heard the petitioner on 10th July, 1990 and heard the Principal of the institution on 11th July, 1990. The Principal of the institution has filed certain documents, on which the Commission has placed reliance, the copies of the aforesaid documents were not given to the petitioners and the petitioners could not reply to the documents filed by the Principal of the institution, as such the procedure adopted by the Commission violated the norm and fair hearing and principles of natural justice.                  

16.   Section 21 of the 1982 Act mandates that, "  no teacher specified in the Schedule shall be dismissed or removed from service ..............nor he may be given notice of removal from service by the management unless prior approval of Commission has been obtained." It is also not disputed that the teacher detailed in Schedule of the 1982 Act includes Principal of Intermediate College.

     17.    Earlier Management had full had in terminating the services of the teachers without any reservation. The Managements were arbitrarily be having and were exploiting the teaching class, taking note of the aforesaid situation, a provision was made land back in U.P. Intermediate Education Act, 1921 which was prima facie with the provisions of Section 21 of the 1982 Act. The legislature has intervened primarily to safe guard the interest of teachers from the arbitrary action of the Management. The section has to be construed as to serve the cause of teachers. However, for granting approval on the proposal of termination of the services of a teacher, the Commission is required to hear the concerned teacher as well as also take into consideration the view point of the Management. No personal hearing is contemplated in its proceedings. The view point of the Management and teacher can be examined on the basis of documents submitted by both of them. The Commission is not supposed to act as a Court and comply with the strict procedure of providing opportunity of hearing and cross examination to the concerned parties. Over all purpose of the enactment is that if on the face of the record available, the Commission is satisfied that the proposal to terminate the services of a teacher by the Management is either illegal, contrary to law or contrary to record, the Commission can disapprove the proposal, consequence of this is that the matter is again writ large before the Committee of Management to consider again if necessary in the light of the observation made by the Commission disapproving the proposal. The argument of strict observance of the principles of natural justice is not attracted. The procedure adopted by the Commission cannot be termed as unfair. It is settled proposition of law that no strait Jacket is prescribed for the observance of the principles of natural justice. No hard and fast rule can be laid down for testing the question as to whether the principles of natural justice has been complied with or not. It depends on the nature of the proceeding and the procedure adopted by the Court or Tribunal. In the present case the Commission was in effect examining the record placed before it by the Management of the Institution and the record placed by the Principal of the institution. The entire record relating to the termination of the services of the Principal of the institution was before the Commission and on examining the entire record, the Commission arrived on the findings that no charge has been made out against the Principal of the institution and the mandatory procedure for terminating the services of the teacher has not been complied with, the principal concerned has not been afforded opportunity to defend; The Commission has disapproved the proposal. The merits of the Commission's order is to be considered in the third ground submitted by the Learned counsel for petitioners."

This judgment has been followed in the case of the Committee of Management, DAV Inter College, Aligarh and another v. U.P.  Secondary Education Service Selection, Commission, Allahabad and others, (1998) 2 UPLBEC 1532. In the said judgment categorical view has been taken that entire record relating to termination of service was there and thereafter on examination, decision had been taken then strict observance of the principles of natural justice is not attracted. Paragraphs 14 and 15 of the judgment being relevant are quoted below:    

"14. Section 21 of the Act of 1982 deals with the restriction on dismissal, removal or reduction in rank of teachers including the Principal. The above punishment cannot be imposed on a teacher less prior approval o the Commission has been obtained. The Uttar Pradesh Secondary Education Service Commission (Procedure for Approval of Punishment) Regulations, 1985 have been framed with a view to operate the provisions of Section 21. After the receipt of the report of enquiry, by the DIOS, relevant papers are to be submitted to the Commission and Regulation 5 of the aforesaid Regulation provides for the documents which the DIOS has invariably to submit to the Commission. Under Regulation 7, the Commission may call for any document  considered relevant to the case from the management or the Inspector. Under Regulation 8, the Commission has been empowered to approve or disapprove the punishment proposed after due consideration of the matter or to issue any other direction deemed fit in the case. A bare reading of the provisions of Section 21 read with Regulation 1985, aforesaid makes it clear that the Commission while deciding whether or not to grant approval for the removal or termination of a teacher has necessarily to go into the merits of the case and apply its mind independently to the question whether the evidence on record justified the removal/termination. In 1995 SCC (L&S) 1155, Committee of Management, Bishambhar Sara Vaidic Inter College, Jaspur, Nainital and another v. U.P.  Secondary Education Service Selection Commission and others, Hon'ble Supreme Court observed that the Commission is a high powered body and is a body entrusted with the important function of supervising the action taken on behalf of the Management against teachers. It has to discharge its responsibilities circumspectively. It cannot exercise its function effectively unless it scrutinizes the material and applies its mind carefully to the facts on record; Hence if the Commission goes through the entire record and the merit of the action taken, its action cannot be faulted. It was held that High Court has committed an error in holding that the Commission could not have gone into the merits of the case. In the aforesaid case, the Commission went through the report of the Enquiry Committee and the evidence on which it was based and found that the enquiry was vitiated because the charges were  not framed by the Enquiry Committee but by the Committee of Management and hence the Enquiry Committee had violated the principles of natural justice and the proceedings before the enquiry Committee were mala fide. In that case the Commission, therefore, did no approve of the action of the Committee of Management in terminating the services of the charged employee. In view of this decision of the Supreme Court, the submission of Dr. Padia that the Commission was not empowered to accept the representation and the evidence of Saraswat turns out to be totally untenable. As said above, in the present case, after this Court had passed an order on 30.8.1995, both the parties had led their evidence and the sub-Committee of the commission proceeded to make its recommendations only when both the parties had given in writing that they were fully satisfied with the opportunity of hearing given to them and they have nothing more to say in the matter. As a mater of fact, in order to arrive at the correct conclusion, it is necessary for the Commission to look into the various documents and the evidence which were collected during the course of enquiry and it is for this purpose and end in view that under Regulation 5 of the Regulations of 1985, referred to above the proposal of punishment is to accompany with all the relevant documents.

15. In (1995) 3 UPLBEC 1593, Committee of Management, Shahganj, Public Inter College, Shahganj, Jaunpur and another v. U. P.  Secondary Education Service Selection Commission, Allahabad and another, learned Single Judge of this Court held that the Commission is not supposed to act as a Court an comply with the strict procedure of providing opportunity of hearing and cross examination to the concerned parties. Commission is required to hear the concerned teacher as well as also take into consideration the view point of the Management. No personal hearing is contemplated in its proceedings. The view point of the Management and teacher can be examined on the basis of documents submitted by both of them. In the instant case the Commission was in effect examining the record placed before it by the Management of the Institution and the record placed by the charged Principal of the institution. The entire record relating to the termination of the services of Saraswat was before the Commission and on examining the entire record, the Commission arrived on the findings that no charge has been made out against Saraswat and the mandatory procedure for terminating the services of the teacher has not been complied with as is contemplated under Regulations 35, 36, 37 and 44, and consequently, the Commission has disapproved the proposal to terminate the services of Saraswat. In these circumstances, the requirement of observance of principles of natural justice is not at all attracted and the order passed by the Commission cannot be said to be in violation of principles of natural justice or cannot be faulted on the ground of the order being in flagrant violation of the principles of fair play."      

This Court in the case of Committee of Management, Shri Chameli Devi Khandelwal Girls Inter College, Mathura and another v. State of U.P. and others (2005) 1 ESC 615, took the view that in exercise of power under Section 21 of U.P.  Secondary Education Service Selection Board Act, 1982, Board has got authority to scrutinize evidence and to see as to whether charges are established or not. Further this Court has noticed the parameters, as per which decision is to be taken by the Selection Board under the U.P.  Secondary Education Service Selection Board Act, 1982 and the Uttar Pradesh Secondary Education Service Commission (Procedure for Approval of Punishment) Regulations, 1985. Relevant paragraphs 9 to 16 of the said judgment are being quoted below:

"9. As far as approval under Section 21 of the act is concerned, the said exercise has to be undertaken by the Board on the papers being transmitted in terms of the provisions as contained under Uttar Pradesh Secondary Education Service Commission (Procedure for Approval of Punishment) Regulations, 1985. For ready reference Section 21 of the Act and Regulations 4, 5, 6, 7 and 8 of the aforementioned Regulations are being quoted below:

U.P. Act No. V of 1982

"21. Restriction on dismissal etc. of teachers.- The Management shall not except with the prior approval of the Board,dismiss any teacher or remove him from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily  or permanently) and any such thing done without such prior approval shall be void."

     

U. P. Secondary Education Service Commission (Procedure for Approval of Punishment) Regulations, 1985:

"4. Proceeding to be completed.- Before submitting cases to the Commission  for approval of the Commission under sub-Section (1) of Section  21, the management shall complete all the proceedings as per procedure prescribed in Intermediate Education Act, 1921 or the rules, if any, and regulations made thereunder or orders issued by the Education Department and/or Board of High School and Intermediate Education, U.P. from time to time in regard to any action mentioned in sub-section (1) of Section 21 of the Act, proposed to be taken.

5.      Documents to accompany.- Such case shall be submitted to the Commission through the Inspector while submitting cases to the Commission, the following documents will invariably be submitted to the  Commission:

(i)  copy of the resolution of management or setting up the inquiry committee;

          (ii)   charge-sheet prepared and served on the teacher;

          (iii)  expiation furnished by the charged teacher in reply to the   charge-sheet;

(iv) full record of the proceedings including evidence taken and cross- examination if any done and personal hearing, if any done and personal hearing,if any, given by the Inquiry Committee appointed for the purpose;

(v) report of the Inquiry Committee;

(vi)      Proposal in regard to punishment to be inflicted;

(vii) Copy of resolution adopted by the management in regard to the proposed punishment;

(viii) up-to-date service book and character roll of the charge-sheeted teacher

6. Inspector to  forward the papers.- The Inspector shall ensure that the documents are complete as required in Regulation 5 and shall forward the same ordinarily within thirty days from the date of receipt of the papers in the first instance from the management.

7. Power of Commission to call for documents.- The Commission may call for any documents considered relevant to the case from the management or the Inspector.

8. Disposal by Commission.- The Commission has been empowered to approve or disapprove the punishment proposed after due consideration of the matter or to issue any other direction deemed fit in the case."

10. A bare perusal of the provisions as contained under Section 21 of the act would go to show that management has the authority to impose punishment, but the said punishment is of no consequence till it is approved by the U.P. Secondary Education Service Selection Board. The resolution passed by the Committee of Management will get life only when approval is accorded to the same. Approval is not a mere formality rather the Commission has to be apply its mind to the facts and circumstances of the case and the material on record with a view to determine as to whether or not managing committee of the institution has acted in consonance with the principles of natural justice and awarded punishment commensurate tot he charges found proved. Section 21 has been inserted to check the arbitrary exercise of poser vested in the Management. Regulations have been framed by the Board, with the approval of the State Government, for discharging tits duties and performing its functions under the Act in exercise of power vested under Section 34 of U.P. Act No. V of 1982. Regulation 4 of aforequoted Regulations talks of obligation cast upon the management of the institution while submitting papers to the Commission. Regulation 5 deals with documents which are to be forwarded to the Commission and agency through which said documents are to be transmitted. Regulation 6 prescribes that Inspector shall ensure that the documents are  complete as referred to in Regulation 5 and forward the same ordinarily within thirty days from the date of receipt of the papers. District Inspector of Schools has been further obliged to point out the defects, if any, in the proceedings of the Management.  The object of th\s particular provision is that it gives an opportunity to the District Inspector of Schools to see that if there is any defect in the proceedings of the management, he shall point out the same and same can be perused by the U.P. Secondary Education Service Selection Board at the point of time of according approval. This power does not confer any authority on  District Inspector of Schools to withhold the papers  and he has to transmit the same ordinarily within thirty days. In case, District Inspector of Schools is satisfied that there are defects in the proceeding then he can make separate note of the same and forward the same. Regulation 7 gives unfettered power to the Board to call for any documents considered relevant to the case from the management or the Inspector. Regulation 8  deals with the disposal by the Commission and the powers of the the Commission, which is to be exercised after due consideration. Due consideration enjoins duty on the Commission to either approve or disapprove or issue any other direction on the punishment proposed on papers as submitted before it. Thus, the scheme of  Act and Regulations are very clear and categorical that after due consideration decision has to be taken by the Commission.

11. Now taking the case in hand, thi is undisputed fact that at no point of time Km. Sarojini Barsol appeared before the Enquiry Committee, and in her absence decision was taken and it was resolved that her services be dispensed with. U.P. Secondary Education Service Selection Board . Wasenjoined to take decision on the papers as referred to in  Regulation 5, and in case, the Board was of the view that any other document was relevant to the case,and then the said document could have been called for from the management or from the Inspector. The scheme of Regulation is thus clear and categorical that decision has to be taken on the papers as described under Regulation 5 and any other document considered relevant had to be asked for by the Board from the management or the Inspector. The scheme of  the Regulation does not say that charged employee has been vested with any authority to submit his/her reply for the first time before the U.P. Secondary Education Service Selection Board, and thereafter Board has to base its decision on the same. Regulation 7 gives authority to the Board to call for documents considered relevant to the case from management or from the Inspector, but it does not authorize the Board to call for any documents from the incumbent. However, this does not mean that in case document considered relevant has been called for, under Regulation 7 then no opportunity should be provided to the incumbent. In case documents referred to in Regulation 7 are called upon, then in that event the said document has to be supplied to the incumbent/charged employee for rebuttal of the same, but straightaway for the first time no reply can be entertained by the Board. An incumbent who has not taken the risk  of not appearing before the Enquiry Committee,cannot be permitted to submit his/her reply to the charges for the first time before the Board. The Board will have to act within the four corners of statutory provisions. Its decision has to be based on the documents referred to in Regulation 5., defects pointed out by the  District Inspector of Schools under Regulation 6 and on the additional documents considered relevant and called for from the Inspector under Regulation 7 and reply to the same. Placing reliance on any other document sis totally impermissible under the scheme.

12. This Court in the case of Managing Committee, Gochar Krishi Inter College, Rampur Manihar, District Saharanpur and others v. U.P. Secondary Education Service Selection Board, Allahabad and others, 2002 (1) ESC. 355, has taken the view that if Selection Board is satisfied that charged employee has not been  afforded adequate opportunity to defend himself/herself, then in exercise of power vested under Regulation 8, the matter could have been remitted back. U.P. Secondary Education Service Selection Board has got no authority to accept the reply of charged employee and consider each and every charge on merit as disciplinary authority.

13. This Court in the case of P.K. Jain v. U.P. Secondary Education Service Commission, 1997 (2) ESC. 487 has taken the view that under Regulation 8, Commission has the authority to modify the punishment, as well as after due consideration of the material available on record, on account of phrase "or may issue any other directions deemed fit, in the case"                      

14. The Hon'ble Apex Court in the case of Committee of Management, Bishambhar Saran Vaidic Inter College v. U.P. Secondary Education Service  Commission, 1996 (2) ESC. 230, has taken the view that while exercising power  under Section 21, Commission in respect to grant or not to grant approval is enjo9ned upon duty to go into the merits of the case and apply its mind independently to the question whether evidence on record justified removal or not. The Commission has been described as high powered body and as a body entrusted with the main function of supervising the actions taken by the management against teachers, and in this background,it has been mentioned that the Commission has to discharge its responsibility circumspectively and the Commission cannot be exercise its function effect8ively unless it scrutinizes the material and applies its mind carefully to the fact on record. This judgment does not authorize, however, taking of fresh evidence. Division Bench of this Court, in the case of Rajendra Lal Srivastava v. Secondary Education Service  Commission, 2003 (1) ESC 74, has taken the view that Commission is not hearing an appeal to the proposal of Management. The Commission is not acting like a superior or higher Court for correcting or rectifying the decision of Lower Court, but is merely consenting to some act or thin doen by anotehr viz. The Management of the institution.    

15. Said Division Bench judgment of  Rajendra Lal Srivastava v. Secondary Education Service  Commission, 2003 (1) ESC 74, and judgment of Hon'ble Apex Court in the case of Committee of Management, Bishambhar Saran Vaidic Inter College v. U.P. Secondary Education, 1995 (Supp) 3 244, has followed in the case of Committee of Management, M.M.I.C. v. SESC 2004 (1) UPLBEC 20 and it has been reiterated that Commission/Board is to apply its mind independently to the question whether the evidence on record  justified the removal or not, and i n this regard has to carefully apply its mind to the facts on record and merit of action taken then int can also direct for lesser punishment. If case so justified.  These judgments nowhere subscribe the view that fresh evidence can be entertained, qua the charge levelled.

16. Thus, inevitable conclusion is that in exercise of power under Section 21 of U.P. Act No. 5 of 1982, Board has got the authority to scrutinize the evidence and to see as to whether charges are established or not and whether punishment proposed is commensurate to the charges levelled or not and whether principles of natural justice has been complied with or not. Nowhere an incumbent who who has not participated in the disciplinary proceeding, has been permitted to submit his/her reply directly before the U.P. Secondary Education Service Selection Board, for the first time, qua the charges and neither the Board is enjoined upon to the act as Enquiry officer. The authority of the Board to scrutinise the evidence qua charge sheet  and the reply, if any, submitted in enquiry,evidence recorded is not disputed, as same would be in consonance with the provisions of Regulation 8, which obliges the Board to take decision, after  due consideration of material on record. Due consideration is possible only in the contingency when Board goes  through the entire record, scrutinizes the record and the merit of action taken. U.P. Secondary Education Service Selection Board has been vested with the authority to approve or disapprove the resolution of punishment on the basis of the material as referred to in Regulation 5 or on the basis of the report appended buy the District Inspector of Schools as contained in Regulation 6 or on the basis of the documents called for under Regulation 7, and apart from this, the Board is not at all enjoined upon to take reply to the charges from the charged employee for the first time before the Board and to proceed to act as Enquiry Officer. Such an action is totally beyond the scheme. The Board is obliged to take decision as provided for in the Regulations. The consistent practice, which is being followed by the Board is, that after complete papers as mentioned in Regulations are received, the matter is placed before the Sub-Committee constituted by the Board. The sub-Committee issues notice to the charged teacher and also to the management and after affording opportunity of personal hearing gives its report. This report is then placed before the Board for approval. The sub-Committee while issuing notice calling for the reply from the charged employee is not entitled to take fresh evidence qua the charges levelled. Reply, if any, is to be filed, the same has to be qua the documents referred to i n Regulations 5, 6 and 7 not beyond it. In case there has been violation of natural justice and entire action smacks  mala fides or motives the same can be pointed out in the reply so submitted, however, fresh evidence in rebuttal of the charges is not permissible specially when  delinquent has chosen not to appear before the enquiry committee. Thus, the decision making process in the present case is faulty on the face of it and same cannot be subscribed."  

 

       On the touchstone of the judgments quoted above, thus, inevitable conclusion is that the authority of the Board is to scrutinize evidence qua charges and reply, if any, submitted in the enquiry and evidence adduced in support of the charges, and thereafter accord approval or disapproval to the said resolution, as the case may be, and further Selection Board has authority to modify the punishment also in exercise of power vested under Regulation 8 of Uttar Pradesh Secondary Education Service Commission (Procedure for Approval of Punishment) Regulations, 1985. Providing of opportunity of personal hearing by sub-committee is not backed by any statutory provision  and the said procedure is being followed by the Board in order to maintain transparency and fairness, at its own level, and is self deviced mechanism.

In the present case undisputed position is that pursuant to remand order passed by this Court dated 23.03.2004 passed in writ petition No.10713 of 2004, Smt. Sheela Sharma, Sub-Committee was constituted with Sri J.P. Verma and Dr. Ajab Singh Yadav as its member. Various dates had been fixed for hearing, and this fact has been admitted and supported from record that on each and every date matter was heard by Sri J.P. Verma and lastly on 28.09.2005, matter was heard by Dr. Ajab Singh Yadav, and on the said date as per order sheet of the Selection Board, both the parties appeared and put forth their respective claims. It was also mentioned therein that both the parties were fully satisfied with the hearing and thereafter proceeding dated 28.09.2005 had been signed by Smt. Sheela Sharma and Sri Rajiv Gupta. Thus, on 28.09.2005, which was the last date of hearing, matter had been heard by Dr. Ajab Singh Yadav. Record reveals that thereafter second member Sri G.P. Verma attained his age of superannuation and one Sri Narendra Singh Yadav was inducted in his place, and thereafter report has been submitted by Dr. Ajab Singh Yadav and Sri Narendra Singh Yadav on 13.04.2007, which has been considered in the meeting of the Selection Board on 16.04.2007, and thereafter communication in question has been sent. Apparently, in the present case, this is accepted position that last hearing in the present case was done by Dr. Ajab Singh Yadav on 28.9.2005, before whom, in writing it was submitted that parties were satisfied with hearing and they had put forth their version. Thus, the sub-committee which heard the matter on 28.09.2005 was single-member committee, before whom whatever petitioners and the charged employee intended to say, put forth their version. It is equally true that thereafter second member Sri G.P. Verma retired and in his place one Sri Narendra Singh Yadav, one of the members of the Selection Board was made member of the sub-committee. It would have been more appropriate and proper in case matter would have been heard by the sub-committee comprising Dr. Ajab Singh Yadav and Sri Narendra Singh Yadav, but in the scheme of the things, which are provided for under U.P.  Secondary Education Service Selection Board Act, 1982 and Uttar Pradesh Secondary Education Service Commission (Procedure for Approval of Punishment) Regulations, 1985, there is no provision of providing opportunity of personal hearing, as such providing of opportunity of personal hearing is not a vested right either of the institution in question or of the delinquent employee, inasmuch as decision has to be taken on the papers so transmitted in terms of regulations 4 to 7 of the U.P. Secondary Education Service Commission (Procedure for Approval of Punishment) Regulations, 1985. In the present case hearing has been done by Dr/. Ajab Singh Yadav on 28.09.2005, and this fact has been admitted that report which, which has been submitted on 16.04.2007, same has been signed by Sri Narendra Singh Yadav also who had not head the matter. Principle of natural justice, thus, has been violated, but the larger question is as to whether on account of this violation of principle of natural justice any prejudice has been caused to the petitioner or not.  Hon'ble Apex Court in the case of State Bank of Patiala and others v. S.K. Sharma, (1996) 3 SCC 364, in the context of principle which emerge in respect of violation of principle of natural justice, has taken the view that in cases except for the cases falling under under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. Paragraph 33 of the judgment being relevant is quoted below:

"33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee) :

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

(2) A substantive provision hasnormallyto be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect canalsobe looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar, (1994 AIR SCW 1050). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should  make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and not adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing." (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the stand-point of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did  or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)

(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of state or public interest may call  for a curtailing or the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."

In the present case tested on these principles, as far as prejudice part is concerned, Management of the institution has miserably failed to substantiate any prejudice; neither any prejudice is established from the pleadings set out in the writ petition nor from the record. Principle of natural justice has been violated, but second requirement is not fulfilled i.e. from the view point of the prejudice, for which remedial measures are required, -as such said violation of principle of natural justice is of no consequence. Reason behind this is that on 28.09.2005, Dr. Ajab Singh Yadav had heard the matter, and thereafter, report had been submitted by him by associating another member. This is not at all case of the petitioners  that any incorrect statement of fact has been mentioned by Sub-Committee, which is contrary to record, rather it has been contended that Sub-Committee  did not appreciate the controversy in its correct perspective; in this background, on prejudice front, as the Management of the  institution has failed to point out any prejudice being caused to it, on account of induction of Sri Narendra Singh Yadav, by not providing opportunity of personal hearing, as such violation which has been there, on the basis of same, decision taken by the Selection Board cannot be faulted.

Much reliance has been placed on the judgment of Hon'ble Apex Court in the case of G. Nageshwar Rao v. A.S.R.T. Corporation, AIR 1959 SC 308 for the proposition that if one person hears the matter and another decides the same, then personal hearing becomes empty formality, and procedure followed  offends basic principle of judicial procedure. In the said case under  the Act and Rules framed thereunder, duty was imposed on the State Government  to give personal hearing, the procedure prescribed by the Rules  imposed duty on the Secretary to hear and the Chief Minister to decide. In this backdrop,view has been taken that divided responsibility is destructive of the concept of judicial hearing. Such procedure defeats the object of personal hearing. Under U.P. Secondary Education Service Selection Board Act, 1982, read with U. P. Secondary Education Service Commission (Procedure for Approval of Punishment) Regulations, 1985,there is no provision of providing  opportunity of personal hearing, the view point of Management and charged employee has to be considered and examined on the basis of documents submitted by them, in terms of 1985 Regulations, while exercising authority under Section 21 of the U.P. Secondary Education Service Selection Board Act, 1982. Sub-Committees are constituted by Selection Board for convenient and expeditious transaction of its business and work in terms of sub-Regulation (2) of Regulation 3 of U.P. Secondary Education Service Selection Board (Procedure and Conduct of Business First Regulations), 1998, framed in exercise of powers under the proviso to sub-section (1) of Section 34 of the U.P. Secondary Education Service Selection Board Act, 1982. Sub-Committees are not at all enjoined upon to provide opportunity of personal hearing,but this does not mean that sub-committees, even if they desire, they cannot provide opportunity of personal hearing, keeping in view the facts and circumstances of each case, but same is not a hard and fast rule, as here opinion has to be formed on the basis of the documents, referred to in Regulations 4 to 7 of 1985 Regulations, and in case Sub-Committee decides to clear some doubt by way of providing opportunity of personal hearing,  it can always do so. Sub-Committee submits its report to Selection Board, which  in its turn, considers the same, in consonance with the provisions with the provisions contained under Regulation 4 of First Regulations, 1998, which deals with holding of meetings of Selection Board. The scheme of things provided under Motor Vehicles Act, 1939 and Rule 10of Motor Vehicle  Rules, required a personal hearing before  decision of objections,  whereas  in the present case there is no requirement of providing any personal hearing. Sub-Committee merely for expeditious and convenient transaction of business and work of Selection Board, submit its report and thereafter entire matter is considered by the Selection Board, where the Chairman and all other Members participate. In this background, in the scheme of  things provided for,it is incorrect to say that hearing has been done by one and verdict has been delivered by other.              

After this question has been examined, original record in question has also been perused. Record in question reveals that U.P.  Secondary Education Service Selection Board has proceeded to examine each and every charge independently after taking into account the charges levelled and reply submitted, and thereafter conclusion has been arrived at by U. P. Secondary Education Service Selection Board, which is an expert body; it has got authority to scrutinize the evidence and thereafter form its opinion and is further empowered to even alter and modify the sentence. The Hon'ble Apex Court in the case of Committee of Management, Bishambhar Saran Vaidic Inter College v. U.P. Secondary Education Service  Commission, 1996 (2) ESC. 230, has taken the view that while exercising power  under Section 21, Commission in respect to grant or not to grant approval is enjoined upon duty to go into the merits of the case and apply its mind independently to the question whether evidence on record justified removal or not. The Commission has been described as high powered body and as a body entrusted with the main function of supervising the actions taken by the management against teachers, and in this background,it has been mentioned that the Commission has to discharge its responsibility circumspectively and the Commission cannot be exercise its function effectively unless it scrutinizes the material and applies its mind carefully to the fact on record.  This Court in the case of P.K. Jain v. U.P. Secondary Education Service Commission, 1997 (2) ESC. 487 has taken the view that under Regulation 8, Commission has the authority to modify the punishment, as well as alter the same after due consideration of the material available on record, on account of phrase "or may issue any other directions deemed fit, in the case. Here, in the present case full fledged exercise has been undertaken and based on the same, opinion has been formed by the U.P.  Secondary Education Service Selection Board, which, in the facts and circumstances of the case, seeing the nature of of the charges, cannot be faulted. The U.P.  Secondary Education Service Selection Board on the basis of the fact that there were minor lapses on the part of Smt. Sheela Sharma, has awarded punishment by directing withholding of two increments on permanent basis, which is also one of the prescribed punishments under U.P. Intermediate Education Act, 1921 and U.P. Act No. V of 1982, and is commensurate to the charges levelled.

In the facts and circumstances of the present case, it is not a fit case for interference. Writ petition lacks substance and the same is dismissed.

07.06.2007

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