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C/M Madan Mohan Valivya Pg College Thru' Its Manager & Anr. v. State Of U.P. Thru' Secry. Higher Edu. And Others - WRIT - C No. - 28126 of 2007  RD-AH 16478 (9 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Civil Misc. Writ Petition No. 28126 of 2007
Committee of Management,
Madan Mohan Mmlaviya, P.G. College,
Bhatparrani, Deoria, through its
Secretary/Manager and another
State of U.P. and others
Hon'ble V. K. Shukla, J.
Committee of Management of Madan Mohan Malviya Post Graduate College through its Secretary/Manager, Badri Narain Singh, has filed present writ petition, questioning the validity of decision dated 11.06.2007 taken by Secretary Higher Education, Government of U.P. Lucknow, proceeding to supersede the Committee of Management of the institution in question, in exercise of authority vested under Section 58 of the U.P. State Universities Act, 1973 and appointing the District Magistrate, Deoria as Authorized Controller of the institution.
Brief background of the case, as disclosed in the writ petition, is that Madan Mohan Malviya Post Graduate College, Deoria is a College affiliated to Din Dayal Upadhaya University, Gorakhpur. The affairs of the said College are run and managed as per provisions contained under the U.P. State Universities Act, 1973 and the First Statute of the said University, by a duly elected and constituted Committee of Management of the institution recognized by the University in terms of Section 2 (13) of the said Act. Earlier Authorized Controller had been functioning in the institution and he continued to function as such till 21.02.2004. Thereafter, charge was handed over to the Committee of Management, which was elected on 27.07.2003 and recognized by the Vice Chancellor of the University on 12.09.2003. Thereafter, fresh elections had been held on 09.07.2006 and Committee of Management has again been recognized by the Vice Chancellor on 16.09.2006 in exercise of authority vested under Section 2 (13) of the U.P. State Universities Act, 1973. In respect of functioning the Principal of the institution, various complaints had been made to the Director of Higher Education. The Director of Higher Education on 12.10.2006 appointed one Dr. Raghvendra Mall, Principal, Government Degree College, Campeerganj, Gorakhpur to make enquiries in respect of conduct of Dr. Om Prakash Tripathi, the Principal of the institution. Enquiry in question was directed against the Principal of the institution and Inquiry Officer was directed to make enquiries on each and every point, which had been raised and thereafter to make necessary recommendations accordingly. The Inquiry Officer on 13.11.2006 addressed a letter to the Manager of the institution, mentioning therein that he had been appointed as Inquiry Officer to make enquiries in respect of serious financial lapses and irregularities committed by the Principal of the institution and he would be visiting the institution on 22.11.2006; Manager and Principal of the institution were directed to be personally present on the said date in the institution, so that enquiry might be conducted smoothly and conveniently. Copy of the said letter was also sent to Dr. Devendra Pratap Mishra, Secretary of Teachers Association. On 22.11.2006, Inquiry Officer came to the College and it has been stated that all papers demanded, were produced before him by the Principal of the College. It has also been stated that the Manager was also present in the College, however, no inquiry was made from him. The Inquiry Officer submitted his report on 01.12.2006 and therein conclusions were drawn and at item Nos. 4 & 5 of the said conclusion, it was mentioned that amount in question had been misappropriated towards medical facility etc. and coupled with this, Management had not produced any document which reflected that there must be bungling in the said account. Recommendation was made for dissolution of the Committee of Management and further for initiating action against the Principal of the institution. After the said report had been submitted, State Government on 20.02.2007 issued notice to petitioner No. 2, mentioning therein that on enquiry being conducted against the Principal of the institution, various financial irregularities and misappropriation of funds have been reflected, and petitioner No. 2 was required to submit his reply on each and every point. In case reply was not submitted, then presumption would be drawn that petitioner has nothing to say and action under Section 58 of the Act would be recommended. After the said notice had been received, petitioners claim that, as every thing had happened on account of the Principal of the institution and primarily he was responsible, and in this background, on 28.02.2007 Principal of the institution was asked to submit his comments so that effective reply could be submitted before the Sate Government. Thereafter on 20.03.2007 it was mentioned that inquiry report submitted by Inquiry Officer was incorrect, inasmuch as no inquiry, whatsoever, was made from the Manager of the institution and on mere presumption said averments had been mentioned in the report. It was also mentioned therein that Management was making enquiry from the Principal, as major allegations were levelled against Principal, and Principal was continuing on leave, as such reasonable time was sought for. Thereafter on 16.04.2007 again letter was sent, mentioning therein that at no point of time any information was given to the Management. Inquiry was directed against the Principal and further Inquiry Officer never made any inquiry from the Management of the institution in question. It was also mentioned therein that petitioners were prepared to get enquiry conducted by any independent agency. After mentioning all these facts, further time was prayed for. Thereafter, as Principal of the institution was not co-operating, he was placed under suspension on 28.05.2007 and disciplinary proceeding were initiated against him. Thereafter on 11.06.2007 order impugned has been passed, mentioning therein that as no reply had been submitted, as such on the basis of the documentary evidence conclusion has been drawn that there are serious irregularities, as such decision was taken to supersede the Committee of Management for a period of one year and Authorized Controller has been appointed. At this juncture present writ petition has been filed.
Counter affidavit has been filed on behalf of State-respondents, and therein, it has been contended that notice was issued to the Management qua mis-management and as the Management deliberately did not take any step to submit reply, in these circumstances, action taken against the Management cannot be faulted. One Ram Nagina Tiwari has also entered appearance. He has supported the action taken by the State Government by contending that rightful action has been taken. It has also been sought to be contended that dispute with regard to Committee of Management is pending in the shape of writ petition No.35835 of 2003.
After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.
Sri P.S. Baghel, Advocate, appearing on behalf of petitioners, contended with vehemence that in the present case authority vested under Section 58 of the U.P. State Universities Act, 1973 has been misused and has been exercised mechanically and colourably, and coupled with this no reasonable opportunity had been provided to the petitioners; the conditions, which are sine qua non for exercising the authority for supersession of the Committee of Management were not at all there, notice itself was vague and evasive, as such order impugned is liable to be quashed.
Sri Gajendra Pratap, Advocate along with Sri A.K. Mishra, Advocate, appearing for Ram Nagina Tiwari, contended that repeated opportunity was given to petitioners, and petitioners have not availed of the said opportunity, as such they cannot be permitted to complain that they had not been provided opportunity, and once on admitted position, there was misappropriation and diversion of funds, then in that background, action taken cannot be faulted. The argument advanced by Sri Gajendra Pratap Advocate, has been followed and adopted by learned Standing Counsel also.
After respective arguments have been advanced, the provisions of Section 57 and 58 of the U.P. State Universities Act, 1973 are to be looked into. They being relevant for the purpose of resolving the controversy involved in the present case, are being quoted below:
"57. Power of the State Government to issue notice.- If the State Government receives information in respect of any affiliated or associated college (other than a college maintained exclusively by the State Government or a local authority)-
(i) that its Management has persistently committed wilful default in paying the salary of the teachers or other employees of the college by the twentieth day of the month next following the month in respect of which or any part of which it is payable; or
(ii) that its Management has failed to appoint teaching staff possessing such qualifications as are necessary for the purpose of ensuring the maintenance of academic standards in relation to the college or has appointed or retained in service any teacher in contravention of the Statute or ordinances [or has failed to comply with the orders of the Director of Education (Higher Education) made on the basis of recommendation of the Uttar Pradesh Higher Education Service Commission under the Uttar Pradesh Higher Education Service Commission Act, 1980] or
(iii) that any dispute with respect to the right claimed by the different persons to be lawful office-bearers of its Management has affected the smooth and orderly administration of the college; or
(iv) that its Management has persistently failed to provide the college with such adequate and proper accommodation, library, furniture, stationary, laboratory, equipment and other facilities, as are necessary for efficient administration of college; or
(v) that its Management has substantially diverted, misapplied or misappropriated the property of the college to the detriment of the college;
it may call upon the Management to show cause why an order under Section 58 should not be made.
Provided that where it is in dispute as to who are the office-bearers of the Management, such notice shall be issued to all persons claiming to be so.
58. Authorized Controller.- (1) If the State Government after considering the explanation, if any, submitted by the Management under Section 57 is satisfied that any ground mentioned in that section exists, it may, by order, authorise any person (herein after referred to as the Authorized Controller) to take over, for such period not exceeding two years as may be specified, the Management of the college and its property to the exclusion of the Management, and where Authorised Controller so takes over the management, he shall, subject only to such restrictions as State Government may impose, have in relation to the Management of the college and its property all such powers and authority as the Management would have if the college and its property were not taken over under this sub-section;
Provided that if the state Government is of the opinion that it is expedient so to do in order to continue to secure the proper Management of the college and its property, it may from time to time, extend the operation of the order for such period, not exceeding one year at a time, as it may specify, ho however, that the total period of operation of the order, including the period specified in initial order under this sub-section does not exceed five years:
Provided further that if at the expiration of the said period of five years , there is no lawfully constituted Management of the college the Authorised Controller shall continue to function as such, until the State Government is satisfied that the Management has been lawfully constituted:
Provided also that the State Government may, at any time, revoke an order made under this sub-section.
(2) Where the State Government while issuing a notice under Section 57 is of opinion, for reasons to be recorded, that immediate action is necessary in the interest of the college, it may suspend the Management, which shall there upon cease to function and make such arrangement as it thinks proper for managing the affairs of the college and its property till further proceedings are completed:
Provided that no sun order shall remain in force for more than six months from the date of actual taking over the Management in pursuance of such order:
Provided further that in computation of the said period of six months, the time during which the operation of the order was suspended by any order of the High Court passed in exercise of jurisdiction under Article 226 of the Constitution or any period during which the Management failed to show cause in pursuance of the notice under Sect8n 57, shall be excluded."
A bare perusal of the provisions quoted above, would go to show that the State Government reserves the right to supersede the Committee of Management of the institution, if it receives information in respect of any affiliated or associated college qua categories of activities mentioned in clauses (i) to (v) of Section 57 of the Act, which have been quoted above. Channel of information is not relevant. The key words are, that "if the Government receives information". On receipt of said information in respect of activities mentioned in clauses (i) to (v) of Section 57 of the Act, State Government is empowered to issue notice and further in case reply is submitted to the said notice, State Government is duty bound to consider the explanation, if any, submitted by the Management, and if the State Government is satisfied that any ground mentioned in that section exists, it may, by order, authorise any person to take over, for such period not exceeding two years as may be specified. Sub-section (2) of Section 58 provides that where immediate action is necessary in the interest of the college, order of suspension of the Management can also be passed till further proceedings are completed, by making arrangement for managing the affairs of the college. Thus for initiating proceeding under Section 57 and 58 of the Act, activities of Management are to fall within four corners as provided under clause (i) to clause (v) of Section 57 of the U.P. State Universities Act, 1973, inasmuch as, existence of these activities would give authority to the State Government to issue notice and proceed for action and order of supersession can only be passed when satisfaction is recorded that any of the grounds mentioned in clause (i) to clause (v) of Section 57 exists. Provisions of this Section are not to be liberally construed, rather provisions of this Section have to be construed strictly, and if the lapses provided for are there, then Management is liable to loose its right of Management. Thus, the Management is at risk to loose its right of Management in case Management drives itself into the directions mentioned in clause (i) to clause (v) of Section 57, then Management invites for itself the proceeding under the aforesaid section of being superseded, and the Management has to blame itself for such situation.
On the touchstone of the provisions quoted above, facts of the present case are being adverted to. In the present case, it is true that proceeding had been initiated against the Principal of the Institution, but at the point of time when enquiry report had been submitted, at various plavces discussion with regard to management of the institution had been made and recommendation had been made for supersession of the Committee of Management of the institution. Contention of the Management is that inquiry was directed only against the Principal of the institution, as such, such report could not be utilised against the Managing committee. There appear to be misconception in the mind of Managing Committee in this regard, inasmuch as, enquiry directed against Principal is not of much importance in view of the provisions of Section 57 of the Act, which provides that said action can be initiated if the State Government receives information. In this background, information may be received from any quarter. Relevant is "information" and not the source /channel of information. It is not necessary that only after getting preliminary enquiry conducted against institution action has to be taken. If the State Government receives information , then it has authority to proceed with the matter, subject to fulfilment of terms and conditions in clauses (i) to (v) of Section 57. Division Bench of this court in the case of Board of Trustees v. State of U.P., 1982 A.L.J. 698, has already taken the view that authority under Section 57 can be exercised by State Government when it receives information of the various defaults mentioned in the above clauses. The word "information" indicates that State Government can act on any information received by it and it need not be only after it gets the college inspected as provided under Section 40 of the Act, which is visitorial power. Consequently, if information has been received by State Government and Inquiry Officer after conducting enquiry recommended for supersession of the Committee of Management of the institution, then State Government has authority to issue notice to Management asking to show cause.
Notice dated 20.02.2007 indicates that Inquiry Officer in its report had found various financial irregularities, misappropriation of funds and various wrongs and misdeeds, as such notice was issued to the institution to submit its reply on each and every point, within three weeks. Notice in question is totally vague and evasive, inasmuch as observations had been made therein that various financial irregularities, misappropriation of funds and various wrongs and misdeeds have been committed. The State Government at the point of time of issuing notice ought to have pin pointed the financial irregularities, misappropriation of funds and various wrongs and misdeeds, which prompted to take action under Sections 57 and 58 of the Act based on the said report of Inquiry Officer. Show cause notice mentions that reply be submitted on each and every point along with documentary evidence. Various issues in the said report were pertaining to Principal of the institution, who was absenting himself from the institution and thus practically impossible situation was sought to be created by asking the Management to submit reply on each and every point raised in the inquiry report by the Inquiry officer. Notice under Section 57 of the Act should be specific, pin pointing that these are the activities of the Management falling within clause (i) to clause (v) of Section 57 of the Act and to the said charges, petitioners have to submit reply . Here, in the present case, show cause notice is totally vague and evasive, requiring the petitioners to submit reply on each and every point without pinpointing the specific allegation. Notice should set out specific alleged contravention, material in support of the same and then calling upon the Management to show cause, why an order under Section 58 of the Act be not made. Consequently, on such notice, proceedings cannot be subscribed.
Apart from this, in the present case, opinion has been formed by the State Government by contending that on the basis of the evidence adduced and material supplied serious irregularities have been committed, as such authority under Section 58 is being exercised. Accepting that petitioners had not submitted reply even then satisfaction, which has been recorded, same ought to have contained reasons, as to what were the documents and circumstances taken into account, which prompted the State Government to form its opinion to take action under Section 58 of the U.P. State Universities Act, 1973. State Government has to consider explanation, if any, and then State Government has to record its own satisfaction that any ground mentioned in clause (i) to clause (v) if Section 57 exists. State Government is obliged to undertake serious exercise both at pre-notice stage and post-notice stage, while proceeding to take final decision qua supersession of Managing Committee. Impugned order in question reflects totally non-serious mechanical exercise on the part of the State Government, by contending that it has perused records, evidence and is of the opinion that serious irregularities have been committed. State Government has not at all given any reason as to on what basis said opinion has been formed and said satisfaction has been recorded. Satisfaction has to be based on material and it is statutory obligation cast upon the State Government to record satisfaction qua the material, which are in reference to clause (i) to clause (v) of Section 57 of the Act before proceeding to direct supersession of the Committee of Management of the institution.
Much stress has been placed that in the present case, ground of diversion, misapplication and misappropriation is not enough, and along with the same further finding has to be returned that all these activities are detrimental to the interest of the college. Sri Gajendra Pratap, Advocate, contended that there is diversion/ misapplication and misappropriation of property and certainly same is not for the benefit of the college and it is not necessary that finding of detrimental is to be recorded and if such findings are required, then it is shockingly illogical and irrational. This is well settled that if law provides a particular procedure for an act being performed in a particular manner, then deviation from the same cannot be subscribed. Division Bench of this Court, in the case of NRMEC College Association v. State of U.P. and others, 1979 A.L.J. 1103, has taken the view that for passing an order taking over Management of private college and appointing an Authorised Controller, the State Government is required to record both the findings namely (i) that there has been diversion; and (ii) that it had been to the detriment of college. If either of the two is missing, the order would liable to fail. Where it is alleged that there had been diversion from the Students Union Fund but no finding to the effect that the students were actually deprived of the benefit which would have accrued to them but for diversion, the State Government could not record finding against Managing Committee holding that an action under Section 57 (v) could justifiably be taken. The case of detriment was one of the fact and is required to be established on circumstantial and other evidence. It may be that in case of misappropriation, the fact of embezzlement may amount to establishing detriment incapable of effective contradiction but that would not be true of diversion. In the case of diversion, detriment could not be presumed. State Government was duty bound to record finding that management has substantially diverted, misapplied and misappropriated the property of the college to the detriment of the college. Once, there is no such finding recorded, then this Court will not proceed to presume a particular thing based on morality. As proceedings under Sections 57 and 58 of the Act are penal in nature which, on account of various activities of the management puts the very existence of the Management in peril, as such proceeding has to be strictly construed. In these circumstances and in this background the impugned action taken by the State Government cannot be subscribed for want of proper notice and for non-recording of satisfaction as enshrined.
Consequently, writ petition succeeds and is allowed. Impugned dated 11.06.2007 passed by Secretary Higher Education, Government of U.P. Lucknow, is hereby quashed and set aside. However, passing of this order will not prevent State Government from issuing fresh notice, giving therein each and every details qua which action has to be taken against petitioners.
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